Republic of the Philippines

SUPREME COURT
Manila

Republic of the Philippines

Supreme Court
Manila

THIRD DIVISION

NICANOR T. SANTOS,

G.R. No. 134787

Petitioner,
Present:

PANGANIBAN, J., Chairman

SANDOVAL-GUTIERREZ,
CORONA,
- versus CARPIO MORALES, and
GARCIA, JJ.
Promulgated:

COURT OF APPEALS, CONSUELO T.

SANTOS-GUERRERO
GUERRERO,

and

ANDRES

November 15, 2005

'Respondents.
x----------------------------------------------------------------------------------x

DECISION

GARCIA, J.:
Jurisprudence is replete with cases of close family ties sadly torn apart by
disputes over inheritance. This is one of them and, for sure, will not be the
last.

In this petition for review on certiorari under Rule 45 of the Rules of Court,
petitioner Nicanor T. Santos assails and seeks to set aside the Decision
dated March 24, 1998[1] of the Court of Appeals (CA) in C.A. G.R. CV No.
50060 dismissing his appeal from the amended decision dated July 27, 1995
of the Regional Trial Court of Malabon-Navotas in Civil Case No. 1784-MN, an
action for revival of judgment.

The facts:

Petitioner Nicanor T. Santos and private respondent Consuelo T. SantosGuerrero are brother and sister, born to spouses Urbano Santos and
Candelaria Santos, now both deceased. Sometime in 1956, Nicanor, Consuelo

and eight of their siblings, executed a 'Basic Agreement of Partition covering

properties they inherited from their parents.

Two years later, Consuelo, joined by her husband, herein respondent Andres
Guerrero (collectively, the 'Guerreros'), filed suit with the then Court of First
Instance (CFI) of Rizal against petitioner Nicanor and two (2) other brothers,
for recovery of inheritance. Docketed as Civil Case No. 4871 and raffled to
Branch VI of the court, the complaint, inter alia, sought to have the
aforementioned 1956 Agreement of Partition judicially declared valid.

Pending resolution of Civil Case No. 4871, the following events transpired:

1. The Santos heirs executed on May 5, 1959 another document,

denominated 'Deed of Partition (With More Corrections). In it, the properties
allotted to the heirs belonging to 'Group 4', to which Consuelo and Nicanor
belonged, were divided into four (4) shares. Share No. 3 was adjudicated to
Nicanor who, however, was obligated to pay Consuelo the amount of
P31,825.00.
'2. Spouses Guerreros filed another complaint against petitioner Nicanor,
docketed as Civil Case No. 5858 of CFI-Rizal, for the recovery of her
(Consuelo's ) share under the May 5, 1959 Deed of Partition.

Civil Case No. 4871 and Civil Case No. 5858 would subsequently be
consolidated before the CFI-Rizal, Branch 11, presided, according to
petitioner, by Judge Andres Reyes. On November 27, 1960, Judge Reyes
rendered a decision (Exh.5'), disposing as follows:

IN VIEW OF THE FOREGOING, the Court hereby renders judgment, ordering the
defendant [herein petitioner] to comply with his part of the Deed of Partition and deliver
to the plaintiff [respondent Consuelo] the amount of P26,650.00 without prejudice to the
right of reimbursement under the same deed. No pronouncement as to costs.
SO ORDERED. (Words in bracket supplied)[2]

Subsequently, the Guerreros instituted another complaint against Nicanor

with the CFI at Pasig for recovery of sums of money under the May 5, 1959
Deed of Partition. For some reason unclear from the records and which the
parties have not explained, the case was also assigned docket number Civil
Case No. 5858. It was raffled to Branch VI of the court, presided by Judge
Eutropio Migrio.[3] Thereat, Nicanor, as defendant a quo, filed a third party
complaint against brothers Ernesto et al. And albeit not touched upon in the
basic pleadings, the issue of whether Nicanor was obligated to pay Consuelo
the amount of P31,825.00, as stated in the 1959 deed of partition, or the
amount of P26,650.00, as decreed in Exhibit '5', was raised in the parties'
respective memoranda.[4] In fact, during the hearing of this particular case,
the Guerreros filed a 'Manifestation and Motion', stating as follows:

1. That they agree to submit this case . . . on the basis of the total amount of P34, 825.00 due to
the plaintiff, Consuelo T. Santos-Guerrero, minus P8,175.00 due to Group 8, or a net balance of
P26,650.00 in favor of the plaintiff . . . .

2. xxx
3. That they finally agree that the total net balance of P26,650.00 plus the interest
thereon and attorney's fees in the amount which this Honorable Court will

determine, shall be paid by the defendant-third party plaintiff Nicanor T. Santos

and all of the third-party defendants '.
WHEREFORE, it is respectfully prayed . . . that judgment be rendered in the
above-entitled case in accordance with the foregoing terms and conditions.

Eventually, on December 28, 1979, Judge Migrio rendered judgment (Exh.

'A') ordering Nicanor, as defendant a quo, to pay Consuelo P31,825.00,
representing the amount due her under the May 5, 1959 deed of partition,
plus damages and attorney's fees.[5]

In time, Nicanor went to the Intermediate Appellate Court (IAC), now CA,
where his appellate recourse was docketed as CA-G.R. No. 69008-CV. In a
Decision dated October 21, 1985, the IAC affirmed the December 28, 1979
CFI decision of Judge Migrio, but reduced the award of moral damages.
Nicanor's petition for review of the IAC decision would subsequently be
denied by this Court per its Resolution dated February 19, 1986 in G.R. No.
L-73121.[6] Following the issuance by the Court of an Entry of Judgment on
April 1, 1986,[7] the records were subsequently remanded to the trial court.
For some reason, however, the Guerreros did not pursue execution of the
judgment.

A little over six (6) years later, or on June 3, 1992, to be precise, the
Guerreros filed a complaint for revival of the December 28, 1979 decision of
Judge Migrio (Exh. 'A'), docketed as Civil Case No. 1784-MN of the Regional
Trial Court (RTC) of Malabon-Navotas. Petitioner Nicanor, as defendant,
countered with a motion to dismiss on several grounds, among which were:
(a) that the complaint for revival of judgment is barred under the res judicata
rule; and (b) that the suit is between members of the same family and no
earnest efforts towards an amicable settlement have been made.

After due proceedings, the RTC of Malabon-Navotas dismissed the complaint

for revival of judgment. However, on motion for reconsideration and following
a new trial, the trial court reversed itself and, accordingly, rendered on July
27, 1995 an amended decision, the fallo of which reads:

WHEREFORE, judgment is hereby rendered reviving the Decision dated

December 28, 1979 in Civil Case No. 5858 and correspondingly, [petitioner] is
hereby ordered to pay [private respondents] as follows.

a) THIRTY ONE THOUSAND EIGHT HUNDRED TWENTY FIVE

PESOS' (P31,825.00) representing the amount due from him to her under
their deed of partition of May 5, 1959;
b) TWENTY FIVE THOUSAND PESOS (P25,000.00) by way of
unrealized profits;

c) FIVE THOUSAND PESOS (P5,000.00) by way of moral damages; and

d) FIVE THOUSAND PESOS (P5,000.00) by way of attorney's fees, all

which sums shall be with interest at the rate of six percent (6%) from
October 30, 1959 when the complaint was filed, up to and including July
28, 1974 and at the rate of twelve percent (12%) from July 29, 1974 until
fully paid.

SO ORDERED. (Words in bracket added)

Therefrom, Nicanor went on appeal to the CA whereat his recourse was
docketed as CA G.R. CV No. 50060. On March 24, 1998, the appellate court
rendered the herein assailed Decision dismissing the appeal. [8] A Resolution
of July 24, 1998 denying Nicanor's motion for reconsideration followed. [9]

' Hence, this instant petition for review,[10] petitioner ascribing to the Court
of Appeals the commission of the following serious' errors, viz:

1. In holding that Article 222 of the New Civil Code in relation to Section
1(j), Rule 16 of the Rules of Court has no application, and if there
is, the subsequent act of herein petitioner already achieved that
purpose;

2. In disregarding the fact that the decision issued by Judge Eutropio

Migrio is null and void for being barred by res judicata and
therefore cannot be revived; and
3. In not ruling that the action based on the decision issued by Judge
Andres Reyes is already barred by prescription.
The petition has no merit.

A lawsuit between close relatives generates deeper bitterness than between

strangers.[11] Thus, the provision making honest efforts towards a
settlement a condition precedent for the maintenance of an action
between members of the same family. As it were, a complaint in
ordinary civil actions involving members of the same family must
contain an allegation that earnest efforts toward a compromise have
been made pursuant to Article 222[12] of the Civil Code, now pursuant
to Article 151 of the Family Code.[13] Otherwise, the complaint may be
dismissed under Section 1(j), Rule 16 of the Rules of Court. [14]
Admittedly, the complaint filed in this case contains no such allegation.
But a complaint otherwise defective on that score may be cured by the
introduction of evidence effectively supplying the necessary averments
of a defective complaint.[15]

Petitioner cannot plausibly look to Article 222 of the Civil Code to effectively
dismiss, as presently urged, Civil Case No. 1784 MN. It cannot be overemphasized in this regard that the rationale of said provision is to obviate
hatred and passion in the family likely to be spawned by litigation between
and among the members thereof. Civil Case No. 1784 MN, however, being
merely an action for revival of judgment of a dormant decision rendered in an
original action, can hardly be the kind of suit contemplated in Article 222 of
the Code. What the appellate court said in the decision subject of review on
the inapplicability under the premises of Article 222 of the Code is well-taken:

xxx The rule should have been invoked by [petitioner] in the original
action [Civil Case 5858 subject of appeal in CA-G.R No. 69008-CV)
where the actual controversy is still at issue and not in the present case
where the actual controversy between the parties had already been decided
by the Court and what remains to be done is the enforcement of the
decision. [At p. 8; Words in bracket added]

Certainly not lost on the Court is an incident during the pre-trial of Civil Case
No. 1784 MN which very well addressed, as aptly noted by the appellate
court, the ideal sought to be achieved by said Article 222. We refer to
petitioner's act, via a proposal, of extending a conciliatory hand to his elder
sister in a failed bid to arrive at an amicable settlement. An excerpt of
petitioner's written proposal:

We are fast approaching the 'cross-road of our journey. I am now 75 years

and [respondent Consuelo] is passed (sic) 78. It is unfortunate that for the
past 30 years we had been quarrelling about this partition and I feel
embarrassed . . . .
I appeal to the conscience and understanding of the [respondent] and by
way of compromise settlement, I offer to pay [her] the amount of
P5,000.00 in lieu of my original obligation of P3,536.11 . . . .

Your HONOR, I am very sorry. Allow me to apologize . . . for bringing

our family problem to this courtroom which should had been settled
among us privately. (At pp. 8-9 of CA's Decision; Words in bracket added)

This bring us to the inter-related second and third assignments of error both
of which question, in the light of Exhibit '5 (the joint decision dated November
27, 1960 of Judge Reyes.[16]), the validity of Exhibit 'A', the December 28,
1979 decision (of Judge Migrio), the revival of which is challenged in this
case.
' Petitioner contends that the 'Judgment dated 28 December 1979 rendered
by Judge Migrio which is the basis of the present case is null and void for
being barred by res judicata. Said decision, petitioner adds, 'had already
been the subject of a prior Decision rendered by Judge Andres Reyes on 27
November 1960.

We are not persuaded.

Res judicata, according to Black, refers to 'the rule that a final judgment
rendered by a court of competent jurisdiction on the merits is conclusive as
to the rights of the parties and their privies and, as to them, constitutes an
absolute bar to a subsequent action involving the same claim, demand or
cause of action.[17] It embraces two concepts: a) the effect of a judgment as
a bar to the prosecution of a second action upon the same claim, demand or
cause of action; this is designated as 'bar by former judgment; and, b)
precludes the relitigation of a particular fact or issues in another action
between the same parties on a different claim or cause of action. This is the
rule on 'conclusiveness of judgment.[18]

' Contrary to petitioner's understanding of the doctrine, res judicata,

assuming its applicability on a given situation, is not a nullifying factor, such
that the final judgment in the former action works to nullify the proceedings
in the subsequent action where the doctrine is invoked. In context, res
judicata is a rule of preclusion to the end that facts or issues settled by final
judgment should not be tried anew. [19] Section 1, Rule 16 of the Rules of
Courts lists res judicata as among the grounds for a motion to dismiss or as a
defense to defeat a claim, but the same must be pleaded at the earliest
opportunity, either in a motion to dismiss or in the answer. Else, the defense
or objection on that ground is deemed waived. [20]

'The Court distinctly notes that Exhibit A (Migrio decision), which petitioner
described as a nullity owing to the operation of res judicata, was, as earlier
narrated, affirmed first by the IAC, then by this Court, per its Resolution of
February 19, 1986 in G.R. No. L-73121.[21] The implication of these
affirmatory actions on the issue of the validity or nullity of Exhibit 'A need no
further belaboring.

The Court observes likewise petitioner's seeming lack of spirit, if not reasons,
to support his position on the issue of res judicata and the consequent effects
thereof on the final outcome of this case. Consider: Save for copies of the
impugned CA decision and resolution, the basic petition for review was filed
with this Court without annexes to support petitioner's narration of facts
whence he drew his conclusions. Worse still, petitioner did not even take
serious effort to explain why he believed the doctrine of res judicata should
be applied. All he virtually does is to state that 'xxx after Judge Reyes
decided Civil Case No. 5858, all the issues therein were already put to rest
[and] [T]he subsequent re-opening of the same by Judge Migrio was without
any legal basis and renders [the latter's ] decision null and void. In net effect,
petitioner has not demonstrated, but assumed the existence of the requisites
of res judicata and peremptorily pronounced the nullificatory effect thereof on

Exhibit A. Needless to state, simplistic conclusions and gratuitous

assumptions drawn from unestablished facts are unacceptable norms for an
intelligent judgment.

The third assigned error is also undeserving of consideration predicated, as it

were, on the erroneous' proposition that the decision sought to be revived is
Exhibit '5 issued, to repeat, on November 27, 1960, not Exhibit 'A', which
petitioner tags as a void decision despite its having been affirmed by the IAC
and this Court. As did the RTC of Malabon-Navotas, the Court of Appeals
found Exhibit 5 and Exhibit 'A to have resolved two (2) separate
complaints, each based on different causes of actions or claims. This factual
determination, needless to state, deserves great respect. Surely, petitioner's
declaration, without more, that Exhibit '5 and Exhibit 'A resolved one and
the same cause of action involving the same parties cannot be the kind of
evidence sufficient to overturn such factual finding.

WHEREFORE, the instant petition is DENIED and the impugned decision of

the Court of Appeals AFFIRMED.

Costs against petitioner.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

JOSE E. HONRADO, G.R. No. 166333

Petitioner,

Present:

- versus - ' PUNO, J., Chairman,

AUSTRIA-MARTINEZ,
CALLEJO, SR.,
COURT OF APPEALS, TINGA, and
HON. ROGELIO M. PIZARRO, CHICO-NAZARIO,* JJ.
in his official capacity as Presiding
Judge of the Regional Trial Court,
Quezon City, Branch 222;
THE CLERK OF COURT OF
THE REGIONAL TRIAL COURT,
as Ex-Officio Sheriff of the RTC of Promulgated:
Quezon City; MR. NERY G. ROY,
in his official capacity as Sheriff IV of November 25, 2005
the RTC of Quezon City; and PREMIUM
AGRO-VET PRODUCTS, INC.,
Respondents.
x-----------------------------------------------------------------------------------------x

DECISION
CALLEJO, SR., J.:

Before this Court is a petition for review of the Decision[1] of the Court of Appeals (CA)
in CA-G.R. SP No. 77488 dated June 30, 2004 dismissing the petition for certiorari for
the nullification of the April 14, 2003

Resolution of the Regional Trial Court (RTC) of Quezon City, Branch 222 in Civil Case
No. Q-97-32965. Also assailed in this petition is the CA Resolution dated December 2,
2004 denying the motion for reconsideration of the said decision.
On December 11, 1997, Premium Agro-Vet Products, Inc. (Premium) filed with the RTC
of Quezon City a complaint for sum of money against Jose Honrado, who was doing
business under the name and style of J.E. Honrado Enterprises. The case was docketed as
Civil Case No. Q-97-32965. Premium sought to collect the amount of P240,765.00
representing the total price of veterinary products purchased on credit by Honrado from
November 18, 1996 until June 30, 1997.

For failure of Honrado, as well as his counsel, to appear at the pre-trial conference, he
was declared in default. Premium was, thus, allowed to present evidence ex parte.
It turned out that the Spouses Jose and Andrerita Honrado had filed a petition with the RTC of
Calamba City for the judicial constitution of the parcel of land registered in Honrado's name
under Transfer Certificate of Title (TCT) No. T-143175 located in Calamba, Laguna, and the
house thereon, as their family house. The case was docketed as SP Case No. 489-1998-C. In his
petition, Honrado declared that his creditors were Atty. Domingo Luciano, P & J Agriculture
Trading, Inc., and Mr. Tito Dela Merced, and that the estimated value of the property was not
more than P240,000.00.

On February 23, 1999, the RTC rendered judgment in favor of Premium:

WHEREFORE, premises considered, judgment is hereby rendered in favor of plaintiff

and against defendant directing the latter to pay plaintiff the following:
1)

P240,765.00 representing the total overdue account plus interest of

28% per annum thereon computed from their respective dates of
deliveries until the same shall have been paid in full;

2)

25% of the total amount awarded, plus acceptance fee of

P50,000.00 and additional P1,500.00 for each day of court
appearance, as attorney's fees; and

3)

Costs of this suit.

SO ORDERED.[2]

Honrado filed a Notice of Appeal. However, on March 20, 2000, the appeal was dismissed for his
failure to file his brief as appellant. Entry of judgment was made on April 26, 2000. [3] On
October 10, 2000, Premium filed a Motion for Issuance of Writ of Execution. [4] The RTC
granted the motion[5] and a writ of execution was issued on March 29, 2001. [6]

The Sheriff levied on the parcel of land covered by TCT No. T-143175. The Notice of Levy was
annotated at the dorsal portion of the title on April 4, 2001. [7] The Sheriff set the sale of the
property at public auction on April 4, 2001. Honrado was served with a copy of the notice of such
sale but he opposed the same.

On May 17, 2001, the property was sold to Premium, the highest bidder, for the amount of
P650,204.10.[8] On May 23, 2001, the corresponding Certificate of Sale was issued [9] and
annotated at the dorsal portion of the title.[10] Honrado failed to redeem the property.

In the meantime, the RTC of Calamba City rendered a Decision [11] in SP Case No. 489-1998-C
on April 29, 2002, declaring the property a family home.

On May 3, 2002, Honrado filed a Motion to Declare Properties Exempt from Execution under
Article 155 of the Family Code of the Philippines in Civil Case No. Q-97-32965. It was alleged

therein that the property is exempt from execution because it is a family home which had been
constituted as such before he incurred his indebtedness with Premium. He also alleged that he and
his family had no other real property except the land which was levied upon and sold on
execution.[12] Premium opposed the motion on the ground that Honrado was already estopped
or barred by laches from claiming the exemption, and that said claim has been mooted by the
lapse of the redemption period for Honrado to redeem the property. Premium averred that, after
the sale at public auction, Honrado and his family even vacated the property. Honrado reoccupied the property only in April or May 2002. [13] It further averred that the law does not
automatically exempt a family home from levy or execution and there was no showing that its
present value does not exceed the amount allowed by law under Article 157 of the Family Code.
[14]

On September 18, 2002, the RTC denied said motion on the ground that Honrado is deemed to
have waived the exemption considering that he failed to object to the sale of the property on
execution on May 17, 2001.[15] Honrado did not assail the said order.

On October 14, 2002, Premium filed a Motion for Issuance of Final Deed of Conveyance
and Writ of Possession[16] asserting that the one-year redemption period had already
lapsed on May 23, 2002, without any redemption being made by Honrado. The latter
opposed the said motion claiming that the RTC of Calamba, Laguna, had already
rendered a decision declaring the property a family home. Honrado further averred that
his family resided in the house before the Family Code became effective and was entitled
to the exemption under the Code.[17]

On April 14, 2003, the respondent Judge issued an Order [18] granting the motion of Premium
and directing Honrado to: (1) execute a final deed of conveyance over the subject parcel of land
covered by TCT No. T-143175 of the Registry of Deeds of Calamba, Laguna; and (2) surrender of

the subject title, TCT No. T-143175. The respondent Judge further ordered that after execution of
the deed of conveyance, a writ of possession be issued over the aforesaid property in favor of the
plaintiff and against the defendant or his successors-in-interest who are in possession of the said
premises.

Honrado filed a petition for certiorari with the CA assailing the April 14, 2003 Resolution of the
RTC. On June 30, 2004, the CA dismissed the petition. [19] The CA declared that there was no
proof that the public respondents committed grave abuse of discretion. The CA ruled that the
petitioner failed to assert his claim for exemption at the time of the levy or within a reasonable
time thereafter. It held that once a judgment becomes final and executory, the prevailing party can
have it executed as a matter of right, and the issuance of a writ of execution becomes a ministerial
duty of the court.[20]

On December 2, 2004, the CA denied the motion for reconsideration filed by Honrado. [21]

In this petition for review, the petitioner alleges that the CA committed serious errors of
law and facts:

5:A ' IN FINDING AND CONCLUDING THAT ARTICLE 153 OF THE

FAMILY CODE FINDS NO APPLICATION IN THE INSTANT CASE;
5:B ' IN FINDING AND CONCLUDING THAT HONRADO'S FAILURE TO
ASSERT HIS CLAIM FOR EXEMPTION OF HIS FAMILY HOME FROM
EXECUTION AT THE TIME OF THE LEVY OR WITHIN A REASONABLE
TIME IS FATAL TO HIS CLAIM;
5:C ' IN NOT FINDING THAT THE RIGHT TO CLAIM EXEMPTION
CANNOT BE WAIVED BECAUSE IT IS CONTRARY TO LAW AND/OR
PUBLIC POLICY.[22]

The petitioner contends that the trial court committed grave abuse of discretion in disallowing his
prayer for exemption of his family home from execution. The petitioner avers that the ruling of
the RTC of Calamba, Laguna, Branch 35 in SP Case No. 489-1998-C, declaring that the property
in question is a family home, has already become final; hence, it can no longer be disturbed. The
family home cannot be levied upon considering that the debt, which was the basis of the
judgment under execution, was incurred between the period from November 18, 1996 and June
30, 1997, or after the Family Code had been in effect. Hence, the family home of the petitioner is
exempt from execution under Article 155 of the Family Code. [23]

The petitioner further asserts that he and his family had been occupying the property as their
family home as early as 1992. Under Article 153 of the Family Code, his house was constituted as
a family home in that year. Thus, even if he failed to contest the levy on his property or move for
the lifting thereof, the same cannot be deemed a waiver of his right to claim the exemption of his
family home. He avers that his right cannot be waived, for it would be contrary to public policy.
He claims that the policy of the State, in conferring such exemption, is to allow a particular
family to occupy, use and enjoy their family home, which must remain with the person
constituting it and his heirs. Moreover, the waiver must be shown by

overt acts and it cannot be presumed from the mere failure to assert the claim for exemption
within a reasonable time.[24]

The private respondent avers that the petitioner is estopped from claiming that the property is
exempt from execution and from assailing the levy of the property, the sale thereof at public
auction and the September 18, 2002 and April 14, 2003 Orders of the RTC. It points out that the
petitioner agreed to the levy and sale of the property at public auction; he even surrendered the
key to the house and vacated the property after it was purchased by the private respondent at the
public auction. The private respondent averred that the petitioner hoped to get a higher amount
than his debt. 'The petitioner never adverted to his petition in the RTC of Calamba, Laguna, for
the constitution of the property as a family home. The petitioner revealed the decision of the RTC
in SP Case No. 489-1998-C only on November 25, 2002 when he opposed the private
respondent's motion for a final deed of conveyance. It was only after the RTC of Calamba,
Laguna, rendered its decision that the petitioner re-occupied the property and claimed, for the
first time, that the property is a family home and exempt from execution. By then, the period for
the petitioner to redeem the property had long lapsed.

The petition has no merit.

In dismissing Honrado's petition, the CA declared that:

Article 153 of the Family Code provides that the family home is deemed
constituted on a house and lot from the time it is occupied as the family
residence. From the time of its constitution and so long as its beneficiaries
actually resides therein, the family home continues to be such and is exempt from
execution, forced sale or attachment, except as hereinafter provided and to the
extent of the value allowed by Law. A family home is a real right, which is

gratuitous, inalienable and free from attachment, constituted over the dwelling
place and the land on which it is situated, which confers upon a particular family
the right to enjoy such properties, which must remain with the person
constituting it and his heirs. It cannot be seized by creditors except in certain
special cases. Such provision finds no application in this case.
Although the Rules of Court does not prescribe the period within which to claim
the exemption, the rule is, nevertheless, well-settled that the right of exemption
must be claimed by the debtor himself at the time of levy or within a reasonable
period thereafter. It is self-evident that petitioner did not assert their claim of
exemption within a reasonable time. Any claim for exemption from execution of
properties under Section 12 of Rule 39 of the Rules of Court must be presented
before its sale on execution by the sheriff. Petitioner and his wife failed to
disclose in their petition for the judicial constitution of a family home that
Premium Agro-Vet Products, Inc. is one of their creditors considering the fact
that the collection case filed against Honrado was filed in 1997 or prior to the
institution of said petition in 1998. Petitioner never raised the argument of
exemption of his family home before the trial court before and during the auction
sale. We find that such actions reveal a dilatory intent to render nugatory the sale
on execution and defeat the very purpose of execution ' to put an end to litigation.
Petitioner previously failed to appear in the pre-trial conference, failed to submit
his appellant's brief and now conveniently raised the issue of exemption almost a
year from the auction sale.
We find no proof of grave abuse of discretion [on] the part of public respondents.
Once a judgment becomes final and executory, the prevailing party can have it
executed as a matter of right, and the issuance of a Writ of Execution becomes a
ministerial duty of the court. It is well-settled that the sheriff's duty in the
execution of a writ issued by a court is purely ministerial. The function of
ordering the execution of a judgment, being judicial, devolves upon the judge.
[25]

The ruling of the appellate court is correct. The respondent court, tribunal or administrative
agency acts without jurisdiction if it does not have the legal power to determine the case. There is
excess of jurisdiction where the respondent, being clothed with the power to determine the case,
oversteps its authority as determined by law. There is grave abuse of discretion where the public
respondent acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of its
judgment as to be said to be equivalent to lack of jurisdiction. Mere abuse of discretion is not
enough.[26]

Moreover, in a petition for certiorari, the jurisdiction of the court is narrow in scope. It is limited
to resolving only cases of jurisdiction. [27] A writ of certiorari is an equitable remedy and he
who comes to court for equity must do so with clean hands.

In this case, the RTC acted in accord with case law when it issued the assailed order. The
petitioner admits to having been notified of the levy of his property and of its sale at public
auction at 9:30 a.m. on May 17, 2001 at the Municipal Hall of Calamba, Laguna. However, he did
not bother to object to the levy and the projected sale on the ground that the property and the
house thereon was a family home. The petitioner allowed the sale at public auction to proceed
and the Sheriff to execute a certificate of sale over the property in favor of the private respondent
for P650,204.10. He even vacated the property after the said sale. The petitioner remained silent
and failed to seek relief from the Sheriff or the court until May 3, 2002, when he filed his motion
to declare the property exempt from execution under Article 155 of the Family Code and Section
13, Rule 39 of the Rules on Civil Procedure. Even then, there was no showing that, during the
hearing of said motion, the petitioner adduced evidence to prove the value of the property and
that it is, indeed, a family home.

Moreover, the petitioner set the hearing of his motion on May 10, 2002 at 8:30 a.m. The private
respondent opposed the motion, but the petitioner did not file any reply thereto. Moreover, the
petitioner never informed the Court that the RTC of Calamba, Laguna, had rendered judgment in
SP Case No. 489-1998-C earlier on April 29, 2002. It was only on November 25, 2002 that the
petitioner revealed to the RTC of Quezon City that there was such a case and a decision had

already been rendered. The petitioner has not justified why he concealed such matters for such
considerable period of time.

While it is true that the family home is constituted on a house and lot from the time it is occupied
as a family residence and is exempt from execution or forced sale under Article 153 of the Family
Code, such claim for exemption should be set up and proved to the Sheriff before the sale of the
property at public auction. Failure to do so would estop the party from later claiming the
exemption. As this Court ruled in Gomez v. Gealone:[28]

Although the Rules of Court does not prescribe the period within which to claim
the exemption, the rule is, nevertheless, well-settled that the right of exemption is
a personal privilege granted to the judgment debtor and as such, it must be
claimed not by the sheriff, but by the debtor himself at the time of the levy or
within a reasonable period thereafter;
In the absence of express provision it has variously held that claim (for
exemption) must be made at the time of the levy if the debtor is
present, that it must be made within a reasonable time, or promptly, or
before the creditor has taken any step involving further costs, or before
advertisement of sale, or at any time before sale, or within a reasonable
time before the sale, or before the sale has commenced, but as to the
last there is contrary authority.
In the light of the facts above summarized, it is self-evident that appellants did
not assert their claim of exemption within a reasonable time. Certainly,
reasonable time, for purposes of the law on exemption, does not mean a time
after the expiration of the one-year period provided for in Section 30 of Rule 39
of the Rules of Court for judgment debtors to redeem the property sold on
execution, otherwise it would render nugatory final bills of sale on execution and
defeat the very purpose of executionto put an end to litigation. We said before,
and We repeat it now, that litigation must end and terminate sometime and
somewhere, and it is essential to an effective administration of justice that, once a
judgment has become final, the winning party be not, through a mere subterfuge,
deprived of the fruits of the verdict. We now rule that claims for exemption from
execution of properties under Section 12 of Rule 39 of the Rules of Court must be
presented before its sale on execution by the sheriff.[29]

IN VIEW OF ALL THE FOREGOING, the petition is DENIED. Costs against the petitioner.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

MARY JOSEPHINE GOMEZ and

EUGENIA SOCORRO C. GOMEZSALCEDO, P e t i t i o n e r s,

G.R. No. 132537

Present:

PUNO,
- versus -

Chairman,
AUSTRIA-MARTINEZ,
CALLEJO, SR.,
TINGA, and

ROEL,
NOEL
and
JANNETTE
BEVERLY STA. INES and HINAHON
STA. INES,

CHICO-NAZARIO, JJ.

R e s p o n d e n t s.
Promulgated:

October 14, 2005

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

Before Us is a Petition for Review on Certiorari of the Decision[1] of the Court of

Appeals reversing the Order[2] of the Regional Trial Court (RTC) of Bayombong, Nueva
Vizcaya, Branch 27, dismissing the complaint of herein respondents for lack of
jurisdiction.

The pertinent facts are as follows:

On 17 June 1986, Mary Josephine C. Gomez (Mary Josephine) and Eugenia Socorro C.
Gomez-Salcedo (Socorro) filed a complaint for damages before the RTC of Pasig against
Marietta dela Cruz Sta. Ines (Marietta) alleging that they are the children of the deceased
Purificacion dela Cruz Gomez who, during her lifetime, entrusted her rice land with an
area of 25,087 square meters located at Bayombong, Nueva Vizcaya, to Marietta,
together with the Transfer Certificate of Title (TCT) No. 47082 covering said land, for the
latter to manage and supervise. Mary Josephine and Socorro further alleged that they
have demanded for an accounting of the produce of said rice land while under the
management of Marietta, and for the return of the TCT to the property, but the latter
refused, thus compelling the sisters to file a civil case[3] before the Pasig RTC.

During the pre-trial conference of the case, both Marietta and her counsel failed to
appear, thus, by motion of counsel for Mary Josephine and Socorro, the trial court
declared Marietta in default.

On 24 January 1989, the trial court rendered judgment against Marietta ordering her to
deliver to Mary Josephine and Socorro the owner's copy of TCT No. 47082 and to pay
P40,000.00 as moral damages, P20,000.00 as actual or compensatory damages,
P30,000.00 as exemplary or corrective damages, and P15,000.00 as attorney's fees.

After said judgment became final and executory, a writ of execution was issued by the
Pasig RTC, by virtue of which, a parcel of land (with improvements) located in
Bayombong, Nueva Vizcaya, with an area of 432 square meters, covered by TCT No. T55314 registered in the name of Marietta dela Cruz Sta. Ines, was levied upon by
Flaviano Balgos, Jr., then Provincial Sheriff of Nueva Vizcaya, to satisfy the damages
awarded in the civil case. Said property was sold at a public auction on 25 August 1992 to
Mary Josephine as the highest bidder. The sale was registered with the Register of Deeds
of Nueva Vizcaya on 17 September 1992.

On 12 July 1993, a complaint[4] for annulment of said sale was filed before the RTC of
Bayombong, Nueva Vizcaya, by Hinahon Sta. Ines together with Noel, Roel, and
Jannette, all named Sta. Ines, husband and children of Marietta, respectively, against
Mary Josephine and Sheriff Flaviano Balgos, Jr. on the ground that said house and lot
sold during the public auction is their family residence, and is thus exempt from
execution under Section 12(a), Rule 39 of the Rules of Court, and under Article 155 of
the Family Code.

Mary Josephine moved to dismiss the complaint on the following grounds: 1) the Nueva
Vizcaya RTC has no jurisdiction over the case; 2) the plaintiffs have no legal capacity to
sue; and 3) the complaint does not state a cause of action.

Acting on the Motion to Dismiss, the Nueva Vizcaya RTC issued an Order on 10
November 1993 denying said motion. According to the court a quo:

After studying the law, rules and jurisprudence, the Court is convinced that the motion to
dismiss has no legal basis.
On the claim that this court has no jurisdiction over the case, inasmuch as this
case involves proceedings to execute the decision of the Pasig RTC, it must be
noted that the petitioners are not parties to the Pasig case. They are third-party
claimants who became such only after trial in the previous (the Pasig) case has
been terminated and the judgment therein has become final and executory. They
are not indispensable nor necessary parties in the Pasig case and they could not,
therefore, even intervene in the said case.

Execution proceedings are entirely a different proceedings from the trial proper
of a case inasmuch as trial proper is conducted by the Court while execution
proceedings are conducted by the Sheriff after the judgment in a trial proper has
become final and executory. The petitioners, therefore, could not, even if they
wanted to, intervene in the trial proper because they are neither indispensable nor
necessary parties and because, precisely, the trial was already over and the
judgment has become final and executory.
But they could, as they have done, intervene in the execution stage because their
rights have been violated by the action of the sheriff. Under Section 17 of Rule
39, of the Rules of Court, the petitioners could, as they have done, file an
independent action to protect their rights. Under the Judiciary Reorganization Act
and Section 2, paragraph a, of Rule 4, Rules of Court, this Court can take
cognizance of the action. There is, therefore, no doubt that this court has
jurisdiction over this case.
It must be mentioned that there are legal obstacles for the petitioners to seek
remedy from the Pasig Court.
Firstly, they are not indispensable nor necessary parties to the Pasig case.
Secondly, the judgment therein has become final and executory. Thirdly, under
paragraph a, Section 2 of Rule 4 of the Rules of Court, cases involving real
properties must be filed in the province where the property or any part thereof
lies. The property levied upon is located in the province of Nueva Vizcaya.
Fourthly, as the judgment in the Pasig case has become final and executory, the
said Pasig court has already lost jurisdiction over the said case except in some
instances and the exception does not apply to this case.
While it is, therefore, true that conflicts of jurisdiction should be avoided,
nonetheless, there can be no conflict of jurisdiction in this case because there is
no concurrent jurisdiction between the Pasig court and this court for reasons
already set forth above.
On the allegation that the petitioners have no legal capacity to sue, the court
believes that they have, in fact, that capacity to sue. Under Article 154 of the
Family Code of the Philippines, the petitioner Hinahon Sta. Ines and the other
petitioners are beneficiaries of the Family home. Any one or all of them can,
therefore, legally question the execution, forced sale or attachment which is
prohibited under Article 155 thereof. It should be noted that, as already pointed
out, the right of the petitioners as beneficiaries of the family home has been
violated when the said family home was levied upon on execution and sold in
violation of the law.
As for lack of cause of action, the Court has already stated above that the right of
the petitioners as beneficiaries of the family home has been transgressed. They,
therefore, have a cause of action against the sheriff's act of unlawfully levying
upon and selling the rights, interests, title and participation in the land in question
and its improvement of Marietta dela Cruz-Sta. Ines.

Pertinently, it may be asked whether an undivided interest of the owner of the

family home like Marietta Sta. Ines can be levied upon on execution and this fact
will not violate the prohibition on such levy found in the Family Code.
The court believes that this can not be done.
Article 154 of the Family Code expressly enumerates the beneficiaries of a
family home. If a person other than any of those enumerated in Article 154 would
be allowed to have an undivided interest in the family home, then he becomes a
beneficiary of such property in violation of the said provision under the principle
of expressio unius est exclusio alterius.
Moreover, Article 152 of the Family Code provides that 'the family home,
constituted jointly by the husband and the wife x x x, is the dwelling house where
they and their family reside, and the land on which it is situated.
The family home as defined by the said article can not be split in such a way that
part of it, albeit undivided, is owned by a non-beneficiary. To allow this would be
to diminish the family home which can be used and enjoyed by those entitled
thereto under the law. This is so because whoever buys the undivided portion
belonging to one of the owners, as in this case, can demand an equal exercise of
the right of co-ownership from the other beneficiaries thereof. To the extent that
such demand can be made effective, the full enjoyment of the property by the
beneficiaries thereof will be correspondingly diminished. The court believes that
when the Family Code allows the constitution of a family home, it does so with
the idea that the beneficiaries thereof can have untrammelled use and enjoyment
thereof; hence, the express prohibition to levy on such property.
WHEREFORE, for lack of basis, the motion to dismiss is hereby DENIED. The
respondent is hereby directed to file her answer within 15 days from receipt of
this Order.[5]

On 01 December 1993, herein petitioners filed a Motion for Reconsideration, which was
then granted by the Nueva Vizcaya RTC in an Order dated 28 January 1994. 'The trial
court reasoned thus:

After restudying the jurisprudence involved in the motion for reconsideration

impinging [sic] on the jurisdiction of this court in relation to the execution of a
judgment rendered by another Regional Trial Court (in Pasig, Metro Manila),
indeed, the only conclusion that can be honestly reached is that this court has no
jurisdiction over the nature of the herein action.
As correctly posited by the defendant's counsel, it is the Pasig Regional Trial
Court that should still exercise jurisdiction over execution of its judgments, 'a
power that carries with it the right to determine every question of fact and law
which may be involved in the execution. (see GSIS vs. Guines, 219 SCRA 724;

Darwin vs. Takonaza, 197 SCRA 442). In fine, plaintiffs should have challenged
the action of the Sheriffs in the civil case wherein the judgment being executed
was promulgated, and not in an independent action filed with a different or even
the same court.
WHEREFORE, for this court's lack of jurisdiction to hear and decide this case,
the instant action is hereby DISMISSED, with costs de officio. [6]

Herein respondents filed a Motion for Reconsideration of said Order of dismissal which
was denied by the lower court in an Order dated 15 March 1994.

Aggrieved, respondents appealed said Order to the Court of Appeals raising the following
errors: 1) the lower court erred in holding that it lacks jurisdiction for the question
presented in this case should have been brought in the Pasig Court as a part of the
proceedings therein and not as a separate case; and 2) the lower court erred in holding
that plaintiffs (herein respondents) cannot be considered third-party claimants.

In their Appellee's Brief, herein petitioners assailed the jurisdiction of the appellate court
to entertain the said appeal arguing that the issues raised were purely questions of law
which the Supreme Court has exclusive appellate jurisdiction.

On 29 March 1996, the Court of Appeals rendered a Decision reversing the Order of
dismissal. According to the appellate court:

Section 17, Rule 39 of the Revised Rules of Court provides:

Proceedings where property claimed by third person - If

property levied on be claimed by any other person than the
judgment debtor or his agent, and such person make an
affidavit of his title thereto or right to the possession
thereof, stating the grounds of such right or title, and
served the same upon the officer making the levy, and a
copy thereof upon the judgment creditor, the officer shall
not be bound to keep the property, unless such judgment

creditor or his agent, on demand of the officer, indemnify

the officer against such claim by a bond in a sum not
greater than the value of the property levied on. xxx xxx
xxx (Italics supplied)
To fall within the ambit of a third-party claimant within the contemplation of the
foregoing, it is not required that one must claim title to the property levied upon, a claim
to the right to the possession thereof being enough, provided that the grounds of such
right are amply explained.

The plaintiffs-appellants in this case claim in their complaint that they have occupied the
house and lot subject of the levy as a family residence since 1972 and that, under Articles
153 and 155 of the Family Code, the same is exempt from execution. Additionally, if
indeed the house and lot subject of this suit are components of a family home, under
Article 154 of the same Code, the plaintiffs are the beneficiaries thereof.

As such third-party claimants, plaintiffs-appellants may avail of the remedy known as

'terceria provided in Section 17 above quoted, by serving upon the sheriff and the
judgment creditor their affidavit attesting to their right of possession of the property
under the Family Code. Also, the plaintiffs-appellants, as third-party claimants, may
invoke the supervisory power of the Pasig Court, as explained in Ong vs. Tating, et al.,
149 SCRA 265, and after a summary hearing, the Pasig Court may command that the
house and lot be released from the mistaken levy and restored to the rightful possessors
or owners. But, as held in Ong vs. Tating, supra, the Pasig Court is limited merely to the
determination of whether the sheriff has acted rightly or wrongly in the performance of
his duties in the execution of judgment. The Pasig Court cannot pass upon the question of
title to or right to the possession of the property subject of the levy with any character of
finality and this question has to be resolved in a 'proper action entirely separate and
distinct from that in which the execution was issued, if instituted by a stranger to the
latter suit (Sy vs. Discaya, 181 SCRA 378). Plaintiffs-appellants are not impleaded as
parties in the case decided by the Pasig Court. While, as previously stated, plaintiffsappellants may avail of the 'terceria', or may apply for a summary hearing with the Pasig
Court as contemplated in Ong vs. Tating, supra, or may file an independent proper
action to assert their right of possession to the house and lot levied upon, such remedies
are not comulative and may be resorted to by them independent of or separately from and
without need of availing of the others (Sy vs. Discaya, supra).

...

Given the foregoing premises, the Nueva Vizcaya Court was therefore in error in ousting
itself of jurisdiction to try Civil Case No. 5853 on the submission that it is only the Pasig
Court, which decided Civil Case No. 53555, that has general supervisory control over the
execution of the judgment in said case, which carries with it, the right to determine every
question of fact and law which may be involved in the execution process.
Coming now to the issue of whether this Court has jurisdiction over this appeal.
The defendant-appellee maintains that since the issue raised in this appeal is
purely a question of law, which is, whether the Nueva Vizcaya Court erred in
dismissing plaintiffs-appellants' complaint, the latter should have taken their case
directly to the Supreme Court.
True it is, that it has been held in a number of cases, that there is a 'question of
law when there is doubt or difference of opinion as to what the law is on a certain
state of facts and which does not call for an examination of the probative value of
the evidence presented by the litigants and that there is a 'question of fact when
the doubt or controversy arises as to the truth or falsity of the alleged facts (Far
East Marble [Phils.], Inc. vs. Court of Appeals, 225 SCRA 249 [1993]; Caia vs.
People, 213 SCRA 309 [1992]; Cheesman vs. Intermediate Appellate Court, 193
SCRA 93 [1991]). But a reading of defendant-appellee's Motion to Dismiss dated
October 1, 1993 filed with the Nueva Vizcaya Court shows that she raised
questions of fact in asserting that plaintiffs have no legal capacity to sue,
claiming that Marietta Dela Cruz Sta-Ines is not a party plaintiff in Civil Case
No. 5853 and that the other plaintiffs are not real parties in interest. The
determination of whether plaintiffs-appellants are real parties in interest hinges
on the factual issue of whether or not they are beneficiaries of a family home
within the contemplation of Article 154 of the Family Code and this would
require the reception of factual evidence as to whether said plaintiffs are really
the husband and children of Marietta Sta. Ines and whether they actually reside in
the house and lot subject of Civil Case No. 5853 as to qualify said properties to
be considered a 'family home within the contemplation of Article 153 of the same
Code. Moreover, defendant-appellee argues that the complaint is premature as
there is no Sheriff's Final Deed of Sale yet. This, again is a factual issue. There is
likewise the question of whether the house and lot exclusively belong to Marietta
Dela Cruz Sta. Ines or whether they are conjugal properties, and if they are
conjugal properties, whether they could be levied upon to satisfy the personal
liability of the defendant Marietta Sta. Ines in Civil Case No. 53555 of the Pasig
Court. Again, in the Order dated March 15, 1994 of the Nueva Vizcaya Court, it
expressed doubts whether plaintiffs-appellants are really third-party claimants in
the legal sense of the word because the house and lot levied upon in Civil Case
No. 53555 exclusively belong to Marietta Dela Cruz Sta. Ines and the plaintiffsappellants seem to have no right thereto. As to whether the latter have a right to
the house and lot is a question that has to be resolved factually. The dispute or
controversy in this case, therefore, would inevitably raise a question of fact, and
accordingly, the appeal to this Court is proper.

But prescinding from the question of whether the issue raised herein is purely
one of law, it seems odd that if the Nueva Vizcaya Court had ruled that it had
jurisdiction over Civil Case No. 5853 and defendant-appellee would seek to
forthwith assail assumption of jurisdiction. She could do so only by way of
certiorari filed with this Court, and not with the Supreme Court, considering the
prevailing principle upholding the so-called 'hierarchy of courts' . But since the
Nueva Vizcaya Court dismissed the complaint on ground of lack of jurisdiction,
defendant-appellee now vehemently argues that this Court has no jurisdiction to
resolve the same issue which could have been raised by her before this same
Court had the ruling of the Nueva Vizcaya Court been different.
IN VIEW OF THE FOREGOING, the Order of the Court a quo dated January
28, 1994, dismissing plaintiffs-appellants' complaint for lack of jurisdiction, and
the Order of the same Court dated March 15, 1994, denying plaintiffs-appellants'
motion for reconsideration, are both REVERSED AND SET ASIDE. The Court
a quo is directed to proceed with the hearing of its Civil Case No. 5853 until its
termination, and to thereafter decide the case accordingly, as the evidence may
warrant.[7]

Petitioners' Motion for Reconsideration was subsequently denied by the Court of

Appeals. Claiming that the appellate court committed serious and reversible errors of law
in issuing its 29 March 1996 decision, petitioners filed before this Court a Petition for
Review on Certiorari, raising the following assignment of errors[8]:

I.
The Court of Appeals committed serious error of law and grave abuse of
discretion in ruling that the RTC of Nueva Vizcaya had jurisdiction over the
respondent's petition.
II.
The Court of Appeals committed serious error of law and grave abuse of
discretion in finding respondents as proper third-party claimants.
III.
The Court of Appeals committed serious error of law and grave abuse of
discretion in assuming jurisdiction of the appeal of respondents that involves
only questions of law; and in reversing the RTC of Nueva Vizcaya.

Ruling of the Court

First, we shall endeavor to dispose of the issue of whether or not the appellate court has
jurisdiction to entertain the appeal from the Order of dismissal.

Petitioners maintain that the question of whether or not the dismissal by the Nueva
Vizcaya RTC of the complaint filed by respondents due to lack of jurisdiction, lack of
capacity to sue, and failure to state a cause of action is a pure question of law which does
not require evidence and should be resolved on the basis of the allegations in the
complaint alone. Petitioners further argue that the case involves only two issues: 1)
whether or not the Nueva Vizcaya RTC can annul and set aside an execution sale made
by the sheriff pursuant to a writ of execution issued by the Pasig RTC; and 2) whether or
not the beneficiaries of a family home can claim exemption from the execution under Art.
155 of the Family Code for wrongful acts committed by Marietta from 1977 up to 1986
before the effectivity of the Family Code on 03 August 1988. Petitioners conclude that
the disposition of these two issues does not necessitate the reception of factual evidence,
thus, are clearly questions of law.

We agree with petitioners that the appeal of respondents to the Court of Appeals raises
only questions of law. It must be stressed at this point that the appeal of respondents to
the appellate court stemmed from the Order of the Nueva Vizcaya RTC dated 28 January
1994 dismissing the complaint 'for lack of jurisdiction to hear and decide the case.
Whether or not such dismissal is correct is neither a question of fact nor of fact and law;
it involves a pure question of law because what is to be resolved is whether, admitting the
facts alleged in the complaint to be true, the trial court has jurisdiction over it in the light
of the laws governing jurisdiction.[9]

There is a question of law when the issue does not call for an examination of the
probative value of evidence presented, the truth or falsehood of facts being admitted and
the doubt concerns the correct application of law and jurisprudence on the matter.[10] On
the other hand, there is a question of fact when the doubt or controversy arises as to the
truth or falsity of the alleged facts. When there is no dispute as to fact, the question of
whether or not the conclusion drawn therefrom is correct is a question of law.[11] In
cases of motions to dismiss on ground of lack of jurisdiction, the allegations in the
complaint are deemed admitted.[12] Thus, the hypothetical admission in a motion to
dismiss of the facts alleged in the complaint renders them beyond dispute and forecloses
any issue of fact for purposes of the motion.[13] And the question of whether the
conclusion drawn therefrom for purposes of applying the law on jurisdiction is accurate
or correct is a question of law.[14]

Therefore, respondents' appeal having been improperly brought before the Court of
Appeals, it should have been dismissed by the appellate court pursuant to Sec. 2, Rule 50
of the Rules of Court, which provides:

Sec. 2. Dismissal of improper appeal to the Court of Appeals. ' An appeal under
Rule 41 taken from the Regional Trial Court to the Court of Appeals raising only
questions of law shall be dismissed, issues purely of law not being reviewable by
the said court. . . .

Nonetheless, in order to put to rest this case involving the execution of the house and lot
in the name of Marietta dela Cruz Sta. Ines, the Court deems it proper to discuss the issue
of whether or not herein respondents, husband and children of the owner of the levied
property, may validly seek the annulment of the sale of said property.[15]

It is a basic principle of law that money judgments are enforceable only against property
unquestionably belonging to the judgment debtor, and any third person adversely affected
by the mistaken levy of his property to answer for another man's debt may validly assail
such levy through the remedies provided for by Rule 39 of the Rules of Court. Under said
rule, a third person may avail himself of the remedies of (1) terceria[16] to determine
whether the sheriff has rightly or wrongly taken hold of the property not belonging to the
judgment debtor or obligor; and (2) independent separate action to vindicate their claim
of ownership and/or possession over the foreclosed property.[17] If a 'separate action is
the recourse, the third-party claimant must institute in a forum of competent jurisdiction
an action, distinct and separate from the action in which the judgment is being enforced,
even before or without need of filing a claim in the court that issued the writ.[18]

In the case at bar, herein respondents are strangers to the action where the writ of
execution was issued. As pointed out by the Nueva Vizcaya RTC in its original Order
denying the motion to dismiss, the husband and children of Marietta were not parties to
the Pasig RTC case and are third-party claimants who became such only after trial in the
previous case had been terminated and the judgment therein had become final and
executory. Neither are they indispensable nor necessary parties in the Pasig RTC case,
and they could not, therefore, intervene in said case. As strangers to the original case,
respondents cannot be compelled to present their claim with the Pasig RTC which issued
the writ of execution.[19] In choosing to institute a 'separate action before a competent
court in the province where the levied property is located (Nueva Vizcaya RTC),

respondents correctly exercised a remedy provided for in the Rules of Court in order that
they may vindicate their alleged claim to the levied house and lot. It was, therefore,
erroneous for the trial court to dismiss the complaint based on lack of jurisdiction.

Nevertheless, respondents' complaint for annulment of sale of the levied property must
still be dismissed. In their petition before Nueva Vizcaya RTC, herein respondents aver
that the property is exempt from execution under Section 12, Rule 39 of the 1988 Rules
on Civil Procedure as said property is the judgment debtor's duly constituted family home
under the Family Code. According to respondents, the house and lot was constituted
jointly by Hinahon and Marietta as their family home from the time they occupied the
same as a family residence in 1972 and that under Section 153 of the Family Code, there
is no longer any need to constitute the said property as family home, whether judicially or
extrajudicially, because it became such by operation of law. Furthermore, respondents
assert that the money judgment against Marietta was rendered by the trial court in
January 1989 long after the constitution of the said family home.

Such contentions are erroneous. Under Article 155 of the Family Code, the family home
shall be exempt from execution, forced sale, or attachment except for, among other
things, debts incurred prior to the constitution of the family home. In the case at bar, the
house and lot of respondents was not constituted as a family home, whether judicially or
extrajudicially, at the time Marietta incurred her debts. Under prevailing jurisprudence, it
is deemed constituted as such only upon the effectivity of the Family Code on 03 August
1988, thus, the debts were incurred before the constitution of the family home. As stated
in the case of Modequillo v. Breva[20]:

. . . Under Article 162 of the Family Code, it is provided that 'the provisions of
this Chapter shall also govern existing family residences insofar as said
provisions are applicable. It does not mean that Articles 152 and 153 of said
Code have a retroactive effect such that all existing family residences are deemed
to have been constituted as family homes at the time of their occupation prior to
the effectivity of the Family Code and are exempt from execution for the
payment of obligations incurred before the effectivity of the Family Code. Article
162 simply means that all existing family residences at the time of the effectivity
of the Family Code, are considered family homes and are prospectively entitled
to the benefits accorded to a family home under the Family Code. Article 162
does not state that the provisions of Chapter 2, Title V have a retroactive effect.

Neither is it correct to say that the obligation sought to be satisfied by the levy of the
property was incurred only upon the issuance of the judgment in the original case in

January of 1989. As stated by herein petitioners, the complaint against Marietta was
instituted on 17 June 1986 to seek redress for damages suffered by them due to acts and
omissions committed by Marietta as early as 1977 when she assumed management and
supervision of their deceased mother's rice land. This means to say that Marietta's
liability, which was the basis of the judgment, arose long before the levied property was
constituted as a family home by operation of law in August 1988. Under the
circumstances, it is clear that the liability incurred by Marietta falls squarely under one of
the instances when a family home may be the subject of execution, forced sale, or
attachment, as provided for by Article 155 of the Family Code, particularly, to answer for
debts incurred prior to the constitution of the family home.

WHEREFORE, premises considered, the petition is hereby GRANTED. The Decision of

the Court of Appeals is REVERSED and SET ASIDE. Special Civil Action No. 5853
entitled, 'Roel Sta. Ines, et al. v. Mary Josephine Gomez, et al., filed before the Regional
Trial Court of Bayombong, Nueva Vizcaya, is hereby DISMISSED. No Costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
[G.R. No. 97898. August 11, 1997]
FLORANTE F. MANACOP, Petitioner, vs. COURT OF APPEALS and E & L
MERCANTILE, INC., Respondents.
.
DECISION
PANGANIBAN, J.:chanroblesvirtuallawlibrary
May a writ of execution of a final and executory judgment issued before the effectivity of
the Family Code be executed on a house and lot constituted as a family home under the
provision of said Code?
Statement of the Casechanroblesvirtuallawlibrary
This is the principal question posed by petitioner in assailing the Decision of Respondent
Court of Appeals[1] in CA-G.R. SP No. 18906 promulgated on February 21, 1990 and its
Resolution promulgated on March 21, 1991, affirming the orders issued by the trial court
commanding the issuance of various writs of execution to enforce the latters decision in
Civil Case No. 53271.
The Factschanroblesvirtuallawlibrary
Petitioner Florante F. Manacop[2] and his wife Eulaceli purchased on March 10, 1972 a
446-square-meter residential lot with a bungalow, in consideration of P75,000.00.[3] The
property, located in Commonwealth Village, Commonwealth Avenue, Quezon City, is
covered by Transfer Certificate of Title No. 174180.chanroblesvirtuallawlibrary
On March 17, 1986, Private Respondent E & L Mercantile, Inc. filed a complaint against
petitioner and F.F. Manacop Construction Co., Inc. before the Regional Trial Court of
Pasig, Metro Manila to collect an indebtedness of P3,359,218.45. Instead of filing an

answer, petitioner and his company entered into a compromise agreement with private
respondent, the salient portion of which provides:chanroblesvirtuallawlibrary
c. That defendants will undertake to pay the amount of P2,000,000.00 as and when their
means permit, but expeditiously as possible as their collectibles will be collected.
(sic)chanroblesvirtuallawlibrary
On April 20, 1986, the trial court rendered judgment approving the aforementioned
compromise agreement. It enjoined the parties to comply with the agreement in good
faith. On July 15, 1986, private respondent filed a motion for execution which the lower
court granted on September 23, 1986. However, execution of the judgment was delayed.
Eventually, the sheriff levied on several vehicles and other personal properties of
petitioner. In partial satisfaction of the judgment debt, these chattels were sold at public
auction for which certificates of sale were correspondingly issued by the
sheriff.chanroblesvirtuallawlibrary
On August 1, 1989, petitioner and his company filed a motion to quash the alias writs of
execution and to stop the sheriff from continuing to enforce them on the ground that the
judgment was not yet executory. They alleged that the compromise agreement had not yet
matured as there was no showing that they had the means to pay the indebtedness or that
their receivables had in fact been collected. They buttressed their motion with
supplements and other pleadings.chanroblesvirtuallawlibrary
On August 11, 1989, private respondent opposed the motion on the following grounds:
(a) it was too late to question the September 23, 1986 Order considering that more than
two years had elapsed; (b) the second alias writ of execution had been partially
implemented; and (c) petitioner and his company were in bad faith in refusing to pay
their indebtedness notwithstanding that from February 1984 to January 5, 1989, they had
collected the total amount of P41,664,895.56. On September 21, 1989, private respondent
filed an opposition to petitioner and his companys addendum to the motion to quash the
writ of execution. It alleged that the property covered by TCT No. 174180 could not be
considered a family home on the grounds that petitioner was already living abroad and
that the property, having been acquired in 1972, should have been judicially constituted
as a family home to exempt it from execution.chanroblesvirtuallawlibrary
On September 26, 1989, the lower court denied the motion to quash the writ of execution
and the prayers in the subsequent pleadings filed by petitioner and his company. Finding
that petitioner and his company had not paid their indebtedness even though they
collected receivables amounting to P57,224,319.75, the lower court held that the case had
become final and executory. It also ruled that petitioners residence was not exempt from
execution as it was not duly constituted as a family home, pursuant to the Civil
Code.chanroblesvirtuallawlibrary
Hence, petitioner and his company filed with the Court of Appeals a petition for
certiorari assailing the lower courts Orders of September 23, 1986 and September 26,
1989. On February 21, 1990, Respondent Court of Appeals rendered its now questioned

Decision dismissing the petition for certiorari. The appellate court quoted with approval
the findings of the lower court that: (a) the judgment based on the compromise agreement
had become final and executory, stressing that petitioner and his company had collected
the total amount of P57,224,319.75 but still failed to pay their indebtedness and (b) there
was no showing that petitioners residence had been duly constituted as a family home to
exempt it from execution. On the second finding, the Court of Appeals added
that:chanroblesvirtuallawlibrary
x x x. We agree with the respondent judge that there is no showing in evidence that
petitioner Maacops residence under TCT 174180 has been duly constituted as a family
home in accordance with law. For one thing, it is the clear implication of Article 153 that
the family home continues to be so deemed constituted so long as any of its beneficiaries
enumerated in Article 154 actually resides therein. Conversely, it ceases to continue as
such family home if none of its beneficiaries actually occupies it. There is no showing in
evidence that any of its beneficiaries is actually residing therein. On the other hand, the
unrefuted assertion of private respondent is that petitioner Florante Maacop had already
left the country and is now, together with all the members of his family, living in West
Covina, Los Angeles, California, U.S.A.chanroblesvirtuallawlibrary
Petitioner and his company filed a motion for reconsideration of this Decision on the
ground that the property covered by TCT No. 174180 was exempt from execution. On
March 21, 1991, the Court of Appeals rendered the challenged Resolution denying the
motion. It anchored its ruling on Modequillo v. Breva,[4] which held that all existing
family residences at the time of the effectivity of the Family Code are considered family
homes and are prospectively entitled to the benefits accorded to a family home under the
Family Code.chanroblesvirtuallawlibrary
Applying the foregoing pronouncements to this case, the Court of Appeals
explained:chanroblesvirtuallawlibrary
The record of the present case shows that petitioners incurred the debt of P3,468,000.00
from private respondent corporation on February 18, 1982 (Annex `A, Petition). The
judgment based upon the compromise agreement was rendered by the court on April 18,
1986 (Annex `C, Ibid). Paraphrasing the aforecited Modequillo case, both the debt and
the judgment preceded the effectivity of the Family Code on August 3, 1988. Verily, the
case at bar does not fall under the exemptions from execution provided under Article 155
of the Family Code.chanroblesvirtuallawlibrary
Undeterred, petitioner filed the instant petition for review on certiorari arguing that the
Court of Appeals misapplied Modequillo. He contends that there was no need for him to
constitute his house and lot as a family home for it to be treated as such since he was and
still is a resident of the same property from the time it was levied upon and up to this
moment.
The Issuechanroblesvirtuallawlibrary

As stated in the opening sentence of this Decision, the issue in this case boils down to
whether a final and executory decision promulgated and a writ of execution issued before
the effectivity of the Family Code can be executed on a family home constituted under
the provisions of the said Code.
The Courts Rulingchanroblesvirtuallawlibrary
We answer the question in the affirmative. The Court of Appeals committed no reversible
error. On the contrary, its Decision and Resolution are supported by law and applicable
jurisprudence.
No Novel Issuechanroblesvirtuallawlibrary
At the outset, the Court notes that the issue submitted for resolution in the instant case is
not entirely new. In Manacop v. Court of Appeals,[5] petitioner himself as a party therein
raised a similar question of whether this very same property was exempt from
preliminary attachment for the same excuse that it was his family home. In said case, F.F.
Cruz & Co., Inc. filed a complaint for a sum of money. As an incident in the proceedings
before it, the trial court issued a writ of attachment on the said house and lot. In
upholding the trial court (and the Court of Appeals) in that case, we ruled that petitioner
incurred the indebtedness in 1987 or prior to the effectivity of the Family Code on August
3, 1988. Hence, petitioners family home was not exempt from attachment by sheer force
of exclusion embodied in paragraph 2, Article 155 of the Family Code cited in
Modequillo, where the Court categorically ruled:chanroblesvirtuallawlibrary
Under the Family Code, a family home is deemed constituted on a house and lot from the
time it is occupied as a family residence. There is no need to constitute the same
judicially or extrajudicially as required in the Civil Code. If the family actually resides in
the premises, it is, therefore, a family home as contemplated by law. Thus, the creditors
should take the necessary precautions to protect their interest before extending credit to
the spouses or head of the family who owns the home.chanroblesvirtuallawlibrary
Article 155 of the Family Code also provides as follows:chanroblesvirtuallawlibrary
Art. 155. The family home shall be exempt from execution, forced sale or attachment
except:chanroblesvirtuallawlibrary
(1) For nonpayment of taxes;chanroblesvirtuallawlibrary
(2) For debts incurred prior to the constitution of the family home;chanroblesvirtuallawlibrary
(3) For debts secured by mortgages on the premises before or after such constitution;
andchanroblesvirtuallawlibrary

(4) For debts due to laborers, mechanics, architects, builders, materialmen and
others who have rendered service or furnished material for the construction
of the building.chanroblesvirtuallawlibrary
The exemption provided as aforestated is effective from the time of the constitution of the
family home as such, and lasts so long as any of its beneficiaries actually resides
therein.chanroblesvirtuallawlibrary
In the present case, the residential house and lot of petitioner was not constituted as a
family home whether judicially or extrajudicially under the Civil Code. It became a
family home by operation of law only under Article 153 of the Family Code. It is deemed
constituted as a family home upon the effectivity of the Family Code on August 3, 1988
not August 4, one year after its publication in the Manila Chronicle on August 4, 1987
(1988 being a leap year).chanroblesvirtuallawlibrary
The contention of petitioner that it should be considered a family home from the time it
was occupied by petitioner and his family in 1960 is not well-taken. Under Article 162 of
the Family Code, it is provided that `the provisions of this Chapter shall also govern
existing family residences insofar as said provisions are applicable. It does not mean that
Articles 152 and 153 of said Code have a retroactive effect such that all existing family
residences are deemed to have been constituted as family homes at the time of their
occupation prior to the effectivity of the Family Code and are exempt from execution for
the payment of obligations incurred before the effectivity of the Family Code. Article 162
simply means that all existing family residences at the time of the effectivity of the
Family Code, are considered family homes and are prospectively entitled to the benefits
accorded to a family home under the Family Code. Article 162 does not state that the
provisions of Chapter 2, Title V have a retroactive effect.chanroblesvirtuallawlibrary
Is the family home of petitioner exempt from execution of the money judgment
aforecited? No. The debt or liability which was the basis of the judgment arose or was
incurred at the time of the vehicular accident on March 16, 1976 and the money judgment
arising therefrom was rendered by the appellate court on January 29, 1988. Both
preceded the effectivity of the Family Code on August 3, 1988. This case does not fall
under the exemptions from execution provided in the Family Code.[6]6 (Underscoring
supplied.)
Article 153 of the Family Code Has No Retroactive Effectchanroblesvirtuallawlibrary
Petitioner contends that the trial court erred in holding that his residence was not exempt
from execution in view of his failure to show that the property involved has been duly
constituted as a family home in accordance with law. He asserts that the Family Code and
Modequillo require simply the occupancy of the property by the petitioner, without need
for its judicial or extrajudicial constitution as a family home.[7]chanroblesvirtuallawlibrary
chanroblesvirtuallawlibrary

Petitioner is only partly correct. True, under the Family Code which took effect on
August 3, 1988,[8] the subject property became his family home under the simplified

process embodied in Article 153 of said Code. However, Modequillo explicitly ruled that
said provision of the Family Code does not have retroactive effect. In other words, prior
to August 3, 1988, the procedure mandated by the Civil Code[9] had to be followed for a
family home to be constituted as such. There being absolutely no proof that the subject
property was judicially or extrajudicially constituted as a family home, it follows that the
laws protective mantle cannot be availed of by petitioner. Since the debt involved herein
was incurred and the assailed orders of the trial court issued prior to August 3, 1988, the
petitioner cannot be shielded by the benevolent provisions of the Family Code.
List of Beneficiary-Occupants Restricted to Those Enumerated in the
Codechanroblesvirtuallawlibrary
In view of the foregoing discussion, there is no reason to address the other arguments of
petitioner other than to correct his misconception of the law. Petitioner contends that he
should be deemed residing in the family home because his stay in the United States is
merely temporary. He asserts that the person staying in the house is his overseer and that
whenever his wife visited this country, she stayed in the family home. This contention
lacks merit.chanroblesvirtuallawlibrary
The law explicitly provides that occupancy of the family home either by the owner
thereof or by any of its beneficiaries must be actual. That which is actual is something
real, or actually existing, as opposed to something merely possible, or to something
which is presumptive or constructive.[10] Actual occupancy, however, need not be by the
owner of the house specifically. Rather, the property may be occupied by the
beneficiaries enumerated by Article 154 of the Family Code.chanroblesvirtuallawlibrary
Art. 154. The beneficiaries of a family home are:chanroblesvirtuallawlibrary
(1) The husband and wife, or an unmarried person who is the head of the family;
andchanroblesvirtuallawlibrary
(2) Their parents, ascendants, descendants, brothers and sisters, whether the
relationship be legitimate or illegitimate, who are living in the family home and
who depend upon the head of the family for lead support.chanroblesvirtuallawlibrary
This enumeration may include the in-laws where the family home is constituted jointly
by the husband and wife.[11] But the law definitely excludes maids and overseers. They
are not the beneficiaries contemplated by the Code. Consequently, occupancy of a family
home by an overseer like Carmencita V. Abat in this case [12] is insufficient compliance
with the law.chanroblesvirtuallawlibrary
WHEREFORE, the petition is hereby DENIED for utter lack of merit. This Decision is
immediately executory. Double costs against petitioner.chanroblesvirtuallawlibrary
SO ORDERED.chanroblesvirtuallawlibrary

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-28394 November 26, 1970

PEDRO GAYON, plaintiff-appellant,
vs.
SILVESTRE GAYON and GENOVEVA DE GAYON, defendants-appellees.
CONCEPCION, C.J.:
Appeal, taken by plaintiff Pedro Gayon, from an order of the Court of First Instance of
Iloilo dismissing his complaint in Civil Case No. 7334 thereof.chanroblesvirtuallawlibrary
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The records show that on July 31, 1967, Pedro Gayon filed said complaint against the
spouses Silvestre Gayon and Genoveva de Gayon, alleging substantially that, on October
1, 1952, said spouses executed a deed - copy of which was attached to the complaint, as
Annex "A" - whereby they sold to Pedro Gelera, for the sum of P500.00, a parcel of
unregistered land therein described, and located in the barrio of Cabubugan, municipality
of Guimbal, province of Iloilo, including the improvements thereon, subject to
redemption within five (5) years or not later than October 1, 1957; that said right of
redemption had not been exercised by Silvestre Gayon, Genoveva de Gayon, or any of
their heirs or successors, despite the expiration of the period therefor; that said Pedro
Gelera and his wife Estelita Damaso had, by virtue of a deed of sale - copy of which was
attached to the complaint, as Annex "B" - dated March 21, 1961, sold the aforementioned
land to plaintiff Pedro Gayon for the sum of P614.00; that plaintiff had, since 1961,
introduced thereon improvements worth P1,000; that he had, moreover, fully paid the
taxes on said property up to 1967; and that Articles 1606 and 1616 of our Civil Code
require a judicial decree for the consolidation of the title in and to a land acquired through

a conditional sale, and, accordingly, praying that an order be issued in plaintiff's favor for
the consolidation of ownership in and to the aforementioned property.chanroblesvirtuallawlibrary

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In her answer to the complaint, Mrs. Gayon alleged that her husband, Silvestre Gayon,
died on January 6, 1954, long before the institution of this case; that Annex "A" to the
complaint is fictitious, for the signature thereon purporting to be her signature is not hers;
that neither she nor her deceased husband had ever executed "any document of whatever
nature in plaintiff's favor"; that the complaint is malicious and had embarrassed her and
her children; that the heirs of Silvestre Gayon had to "employ the services of counsel for
a fee of P500.00 and incurred expenses of at least P200.00"; and that being a brother of
the deceased Silvestre Gayon, plaintiff "did not exert efforts for the amicable settlement
of the case" before filing his complaint. She prayed, therefore, that the same be dismissed
and that plaintiff be sentenced to pay damages.chanroblesvirtuallawlibrary
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Soon later, she filed a motion to dismiss, reproducing substantially the averments made in
her answer and stressing that, in view of the death of Silvestre Gayon, there is a
"necessity of amending the complaint to suit the genuine facts on record." Presently, or
on September 16, 1967, the lower court issued the order appealed from, reading:
Considering the motion to dismiss and it appearing from Exhibit "A"
annexed to the complaint that Silvestre Gayon is the absolute owner of the
land in question, and considering the fact that Silvestre Gayon is now dead
and his wife Genoveva de Gayon has nothing to do with the land subject
of plaintiff's complaint, as prayed for, this case is hereby dismissed,
without pronouncement as to costs. 1
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A reconsideration of this order having been denied, plaintiff interposed the present
appeal, which is well taken.chanroblesvirtuallawlibrary
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Said order is manifestly erroneous and must be set aside. To begin with, it is not true that
Mrs. Gayon "has nothing to do with the land subject of plaintiff's complaint." As the
widow of Silvestre Gayon, she is one of his compulsory heirs 2and has, accordingly, an
interest in the property in question. Moreover, her own motion to dismiss indicated
merely "a necessity of amending the complaint," to the end that the other successors in
interest of Silvestre Gayon, instead of the latter, be made parties in this case. In her
opposition to the aforesaid motion for reconsideration of the plaintiff, Mrs. Gayon
alleged, inter alia, that the "heirs cannot represent the dead defendant, unless there is a
declaration of heirship." Inasmuch, however, as succession takes place, by operation of
law, "from the moment of the death of the decedent" 3and "(t)he inheritance includes all
the property, rights and obligations of a person which are not extinguished by his death,"
4
it follows that if his heirs were included as defendants in this case, they would be sued,
not as "representatives" of the decedent, but as owners of an aliquot interest in the
property in question, even if the precise extent of their interest may still be undetermined
and they have derived it from the decent. Hence, they may be sued without a previous
declaration of heirship, provided there is no pending special proceeding for the settlement
of the estate of the decedent. 5
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As regards plaintiff's failure to seek a compromise, as an alleged obstacle to the present

case, Art. 222 of our Civil Code provides:
No suit shall be filed or maintained between members of the same family
unless it should appear that earnest efforts toward a compromise have been
made, but that the same have failed, subject to the limitations in article
2035.
It is noteworthy that the impediment arising from this provision applies to suits "filed or
maintained between members of the same family." This phrase, "members of the same
family," should, however, be construed in the light of Art. 217 of the same Code, pursuant
to which:
Family relations shall include those:
(1) Between husband and wife;
(2) Between parent and child;

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(3) Among other ascendants and their descendants;

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(4) Among brothers and sisters.

Mrs. Gayon is plaintiff's sister-in-law, whereas her children are his nephews and/or
nieces. Inasmuch as none of them is included in the enumeration contained in said Art.
217 - which should be construed strictly, it being an exception to the general rule - and
Silvestre Gayon must necessarily be excluded as party in the case at bar, it follows that
the same does not come within the purview of Art. 222, and plaintiff's failure to seek a
compromise before filing the complaint does not bar the same.chanroblesvirtuallawlibrary
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WHEREFORE, the order appealed from is hereby set aside and the case remanded to the
lower court for the inclusion, as defendant or defendants therein, of the administrator or
executor of the estate of Silvestre Gayon, if any, in lieu of the decedent, or, in the absence
of such administrator or executor, of the heirs of the deceased Silvestre Gayon, and for
further proceedings, not inconsistent with this decision, with the costs of this instance
against defendant-appellee, Genoveva de Gayon. It is so ordered.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-32159 October 28, 1977
ZOILA MENDEZ, RAFAEL MENDEZ, and MATILDE BIONSON, Petitioners,
vs.
MAXIMO, EUGENIA JUANA, FORTUNATA, PRUDENCIA, ROMAN, ANECITA
and MARIA, all surnamed BIONSON and HON. ALFREDO C. LAYA, Judge,
Court of First of Cebu, Branch XII, respondents
Amado G. Olis for petitioners.

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Cecilio V. Guaren for private respondents.

-->

FERNANDEZ, J.:

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This is a petition to review the summary judgment in Civil Case No. AV-26 of the Court
of First Instance of Cebu, Branch XII, entitled "Maximo Bionson, et al., vs. Zoila
Mendez, et al.," the dispositive part of which reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs in
the above entitled case and against the defendants, that the portion of land
subject matter of the case which the defendants are occupying is hereby
awarded to the plaintiffs, and the defendants are hereby ordered to vacate
the same and to deliver it to the plaintiffs. without any damages and
pronouncement as to costs.chanroblesvirtuallawlibrary
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SO ORDERED.chanroblesvirtuallawlibrary

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Given in Open Court 15th day of May, 1970, Cebu City,

Philippines.chanroblesvirtuallawlibrary
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(Sgd.) ALFREDO C. LAYA

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Judge 1
The record shows that the petitioners Zoila Mendez and Matilde Bionson, together with
ten (10) other persons filed on October 8, 1968 in the Court of First Instance of Cebu an
action against Cecilia Bionson, Dionisia Gumapon and Juana, Fortunate. Maximo,
Prudencia, Roman, Anecita, Eugenia and Maria, all surnamed Bionson, for partition of
two parcels of land located in Oslob, Cebu. The action was docketed as Civil Case No. R10846 and assigned to Branch XI of the Court of First Instance of Cebu.2 It was praved in
the complaint that judgment be rendered declaring plaintiffs Zoila Mendez, Paula,
Benigna, Pedro, Felisa, Amos, Toribia and Macario, all surnamed Bionson, as the lawful
owners of one third (1/3) of each parcel of land described in paragraph 4 (a) and (b) of
the complaint; and declaring plaintiffs Matilde, Marina, Ponciano and Leon, all surnamed
Bionson, as the lawful owners of another one-third (1/3) of each of the said properties;
declaring defendants as the owners of the remaining one-third (1/3) of each of the
properties and ordering the physical partition of said parcels of land into three (3) equal,
parts, and each part to be assigned to the specific declared owners.chanroblesvirtuallawlibrary
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The defendants in Civil Case No. R-10846 alleged in their answer 3 that they are the
absolute and exclusive owners of the two (2) parcels of land and that the plaintiffs have
no cause of action against them. As counterclaim, the defendants asked for moral
damages and for the agreed monthly rental of P10.00 and the rentals in arrears for the last
ten (10) months of the house owned by Antonio Bionson rented and occupied by Zoila
Mendez on parcel (a), paragraph 4 of the complaint, as well as that portion of the said
land leased to Matilde Bionson and occupied by her house and/or to vacate the premises
and for attorneys' fees and expenses of litigation.chanroblesvirtuallawlibrary
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After trial, the Court of First Instance of Cebu, Branch XI, rendered its decision in Civil
Case No. R-10846, the dispositive part of which reads:
PREMISES CONSIDERED JUDGMENT is hereby rendered in favor (if
the defendants and against the plaintiffs dismissing the (- complaint for
failure of the plaintiffs to prove their claim on the two parcels ): I of land
in question with preponderance of evidence, with costs. the counter-claim
of defendants is hereby dismissed for lack of sufficient
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SO ORDERED

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Cebu City Philippines, September 1, 1969.chanroblesvirtuallawlibrary

(Sgd.) AGAPITO HONTANOSAS Judge 4

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The said decision in Civil Case No. R-10846 became final and executory. A writ of
execution was issued and the Deputy Provincial Sheriff collected from the plaintiffs
therein the sum of P190.80 for costs. 5
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In December 1969, the private respondents filed in the Court of First Instance of Cebu an
action for recovery of possession and ownership of one of the parcels of land in Civil
Case No. R-10846 10846 against the petitioners. The complaint was docketed as Civil
Case No. AV-26 and assigned to Branch XII of the Court of First Instance of Cebu. The
parties, subject matter and issues are substantially the same in Civil Case No. R-10846
and Civil Case No. AV-26 of the Court of First Instance of Cebu.chanroblesvirtuallawlibrary
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After the issues were joined, Civil Case No. AV-26 was set for pre- trial. During the pretrial, the parties asked that judgment be rendered on the pleadings and both of them
presented the decision in Civil Case No. R-10846. Thereupon, the trial court rendered a
summary judgment which reads:
SUMMARY OF JUDGMENT

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During the pre-trial this morning, the parties thru their respective counsels
asked for judgment on the pleadings, and both of them presented the
decision in Civil Case No. R-10846. The property under litigation in the
case at bar being the same subject matter in civil Case No. R-10846 the
defendants in this present case thru their counsels manifested to the Court
that the decision in Civil Case No. R-10846 has already become final and
that no appeal was made. Going over the decision of the Court in Civil
Case No. R-10846 the defendants in that case and who are the plaintiffs in
the case at bar were awarded the property in question but the dispositive
portion of the said decision inadvertently failed to state that the plaintiffs
in that case should vacate the premises in question in favor of plaintiffs
herein and for which reason the plaintiffs in the case at bar filed this action
for recovery and for the purpose of requiring the defendants herein to
deliver to them the portion of the property in question. As it was
extensively discussed and found out by the Court in Civil Case No. R10846 that the property in question belongs to plaintiffs in the case at bar
and the defendants refuse to deliver to them the ownership and possession
of the same, the former ask this Court to compel the latter to deliver to
them the possession of the portion of the land in question. there being no
appeal taken by them and the decision in Civil Case G.R. No. R-10846.
(Exhibit-A for plaintiffs and Exhibit-1 for, defendants) having become
final, the preponderance of evidence is in favor of the herein plaintiffs who
were defendants in Civil Case No. R-10846 and against the defendants
herein who were the plaintiffs in said Civil Case No. R10846.chanroblesvirtuallawlibrary
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WHEREFORE, judgment is hereby rendered in favor of the plaintiffs in

the above entitled case and against the defendants, that the portion of land

subject matter of the case which the defendants are occupying is hereby
awarded to the plaintiffs, and the defendants are hereby ordered to vacate
the same and to deliver it to the plaintiffs. Without any damages and
pronouncement as to costs.chanroblesvirtuallawlibrary
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SO ORDERED.chanroblesvirtuallawlibrary

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Given in Open Court 15th day of May, 1970, Cebu City, Philippines.
(
S
g
d
.
)
A
L
F
R
E
D
O
C
.
L
A
Y
A
Judge 6
The petitioners assign the following errors:
I

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THE COURT A QUO ERRED IN NOT DISMISSING THE COMPLAINT IN CIVIL

CASE NO. AV-26 FOR BEING BARRED BY A PRIOR JUDGMENT IN CIVIL CASE
140. R-10846 RENDERED BY ANOTHER BRANCH OF THE SAME COURT AND
WHICH HAD LONG BECOME FINAL.chanroblesvirtuallawlibrary
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II

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THE COURT A QUO ERRED IN RENDERING A JUDGMENT ON THE

PLEADINGS, WHERE THE MATERIAL ALLEGATIONS IN THE COMPLAINT ARE
SPECIFICALLY DENIED AND SERIOUSLY TRAVERSED.chanroblesvirtuallawlibrary
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III

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THE COURT A QUO ERRED IN RENDERING A JUDGMENT BASED ON A

PREVIOUS DECISION RENDERED BY ANOTHER BRANCH OF THE SAME
COURT WITH A DIFFERENT DISPOSITION
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IV

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THE COURT A QUO ERRED IN NOT DISMISSING THE COMPLAINT FOR LACK
OF EARNEST EFFORTS BEING EXERTED BY THE PARTIES TO ARRIVE AT AN
AMICABLE SETTLEMENT BEFORE THE ACTION WAS INSTITUTED, THE
PARTIES BEING MEMBERS OF THE SAME FAMILY. 7
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The principal issue is the interpretation of the decision in Civil Case No. R-10846. The
petitioners' contention that the decision in Civil Case No. R-10846 'denied the private
respondents' claim of ownership' 8 has no merit. Precisely, the Court of First Instance of
Cebu, Branch XI, rendered judgment in favor of the defendants and against the plaintiffs
dismissing the complaint for failure of the latter to prove their claim on the two parcels of
land in question with preponderance of evidence. The pertinent portion of the decision in
Civil Case No. R-10846 reads:
After a careful review and study of the evidence of both parties, this Court
is of the view that the plaintiffs have failed to establish their claims to the
two parcels of land in question with preponderance of evidence although
the testimonial evidence of their witnesses is presented in the manner
more elaborately than that of the defendants. It cannot be held, however,
that said testimonial evidence is superior to and/or more paramount than
that of the defendants considering all the surrounding circumstances of the
case and taking into consideration the documentary evidence in support of
the defendant, testimonial evidence. What is decisive in the determination
as to which party has established its claim or theory with preponderance of
evidence is the documentary exhibits consisting of tax declarations as
shown in Exhibits "1" to "11" and the official tax receipts as shown in
Exhibits "12" "12-A" to "12-W". Chest official documents speak better
than the best oral testimony a witness is of making. 9
chanrobles virtual law library

It is clear that in Civil Case No. R-10846 the defendants, private respondents herein, were
declared as the owners of the land in question.chanroblesvirtuallawlibrary
chanrobles virtual law library

It is true that the counterclaim of the defendants in Civil Case No. 10846 was also
dismissed for lack of sufficient evidence.chanroblesvirtuallawlibrary
chanrobles virtual law library

However, the dismissal of the counterclaim cannot affect the rights of the private
respondents on the two (2) parcels of land in question because said counterclaim referred
only to the demand for moral damages, rentals and attorney's fees.chanroblesvirtuallawlibrary
chanrobles virtual law library

As owners of the land in question, the private respondents have a right to the possession
thereof and have the right of action against the holder and possessor of the land in order
to recover it.10
chanrobles virtual law library

The plaintiffs in Civil Case No. R-10846 alleged in their complaint that they exerted
diligent efforts to arrive at an amicable settlement or compromise to the extent of asking
the intervention of local municipal officials. 11 The petitioners may no longer assign as
error failure of the trial court to dismiss Civil Case No. AV-26 for alleged lack of earnest
efforts of the private respondents to settle the case amicably. Civil Case No. AV-26 is a
mere consequence of Civil Case No. R-10846.chanroblesvirtuallawlibrary
chanrobles virtual law library

Moreover, the parties are not members of the same family as provided in Article 217,
Civil Code of the Philippines which reads:
ART 217. Family relations shall include those:
1. Between husband and wife;
2. Between parent and child;

chanrobles virtual law library

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3. Among other ascendants and their descendants;

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4. Among brothers and sisters.

The parties are collateral relatives who are not brothers and sisters. 12
The trial court did not commit the errors assigned.chanroblesvirtuallawlibrary

chanrobles virtual law library

chanrobles virtual law library

WHEREFORE, the decision appealed from is hereby affirmed, with costs against the
petitioners.chanroblesvirtuallawlibrary
chanrobles virtual law library

SO ORDERED.

Republic of the Philipppines

SUPREME COURT
Manila

SECOND DIVISION
[G.R. No. 125465. June 29, 1999]
SPOUSES AUGUSTO HONTIVEROS and MARIA HONTIVEROS, Petitioners, vs.
REGIONAL TRIAL COURT, Branch 25, Iloilo City and SPOUSES GREGORIO
HONTIVEROS and TEODORA AYSON, Respondents.
DECISION
MENDOZA, J.: chanroblesvirtuallawlibrary

On December 3, 1990, petitioners, the spouses Augusto and Maria Hontiveros, filed a
complaint for damages against private respondents Gregorio Hontiveros and Teodora
Ayson before the Regional Trial Court of Iloilo City, Branch 25, where it was docketed as
Civil Case No. 19504. In said complaint, petitioners alleged that they are the owners of a
parcel of land, in the town of Jamindan, Province of Capiz, as shown by OCT No. 02124, issued pursuant to the decision of the Intermediate Appellate Court, dated April 12,
1984, which modified the decision of the Court of First Instance of Capiz, dated January
23, 1975, in a land registration case[1] filed by private respondent Gregorio Hontiveros;
that petitioners were deprived of income from the land as a result of the filing of the land
registration case; that such income consisted of rentals from tenants of the land in the
amount of P66,000.00 per year from 1968 to 1987, and P595,000.00 per year thereafter;
and that private respondents filed the land registration case and withheld possession of
the land from petitioners in bad faith.[2] chanroblesvirtuallawlibrary
In their answer, private respondents denied that they were married and alleged that
private respondent Hontiveros was a widower while private respondent Ayson was single.
They denied that they had deprived petitioners of possession of and income from the
land. On the contrary, they alleged that possession of the property in question had already
been transferred to petitioners on August 7, 1985, by virtue of a writ of possession, dated
July 18, 1985, issued by the clerk of court of the Regional Trial Court of Capiz,
Mambusao, the return thereof having been received by petitioners counsel; that since
then, petitioners have been directly receiving rentals from the tenants of the land; that the
complaint failed to state a cause of action since it did not allege that earnest efforts
towards a compromise had been made, considering that petitioner Augusto Hontiveros
and private respondent Gregorio Hontiveros are brothers; that the decision of the
Intermediate Appellate Court in Land Registration Case No. N-581-25 was null and void
since it was based upon a ground which was not passed upon by the trial court; that
petitioners claim for damages was barred by prescription with respect to claims before

1984; that there were no rentals due since private respondent Hontiveros was a possessor
in good faith and for value; and that private respondent Ayson had nothing to do with the
case as she was not married to private respondent Gregorio Hontiveros and did not have
any proprietary interest in the subject property. Private respondents prayed for the
dismissal of the complaint and for an order against petitioners to pay damages to private
respondents by way of counterclaim, as well as reconveyance of the subject land to
private respondents.[3] chanroblesvirtuallawlibrary
On May 16, 1991, petitioners filed an Amended Complaint to insert therein an allegation
that earnest efforts towards a compromise have been made between the parties but the
same were unsuccessful. chanroblesvirtuallawlibrary
In due time, private respondents filed an Answer to Amended Complaint with
Counterclaim, in which they denied, among other things, that earnest efforts had been
made to reach a compromise but the parties were unsuccessful. chanroblesvirtuallawlibrary
On July 19, 1995, petitioners moved for a judgment on the pleadings on the ground that
private respondents answer did not tender an issue or that it otherwise admitted the
material allegations of the complaint.[4] Private respondents opposed the motion alleging
that they had denied petitioners claims and thus tendered certain issues of fact which
could only be resolved after trial.[5] chanroblesvirtuallawlibrary
On November 23, 1995, the trial court denied petitioners motion. At the same time,
however, it dismissed the case on the ground that the complaint was not verified as
required by Art. 151 of the Family Code and, therefore, it did not believe that earnest
efforts had been made to arrive at a compromise. The order of the trial court reads:[6]
chanroblesvirtuallawlibrary

The Court, after an assessment of the diverging views and arguments presented by both
parties, is of the opinion and so holds that judgment on the pleadings is inappropriate not
only for the fact that the defendants in their answer, particularly in its paragraph 3 to the
amended complaint, specifically denied the claim of damages against them, but also
because of the ruling in De Cruz vs. Cruz, G.R. No. 27759, April 17, 1970 (32 SCRA
307), citing Rili vs. Chunaco, 98 Phil. 505, which ruled that the party claiming damages
must satisfactorily prove the amount thereof and that though the rule is that failure to
specifically deny the allegations in the complaint or counter-claim is deemed an
admission of said allegations, there is however an exception to it, that is, that when the
allegations refer to the amount of damages, the allegations must still be proved. This
ruling is in accord with the provision of Section 1, Rule 9 of the Rules of
Court.chanroblesvirtuallawlibrary
That while the plaintiffs in their amended complaint allege that earnest efforts towards a
compromise with the defendants were made, the fact is that their complaint was not
verified as provided in Article 151 of the Family Code. Besides, it is not believed that
there were indeed earnest efforts made to patch up and/or reconcile the two feuding
brothers, Gregorio and Augusto, both surnamed Hontiveros.chanroblesvirtuallawlibrary

The submission of the plaintiffs that, assuming no such earnest efforts were made, the
same is not necessary or jurisdictional in the light of the ruling in Rufino Magbaleta, et
al., petitioners, vs. Hon. Arsenio M. Gonong, et al., respondents, No. L-44903, April 22,
1977, is, to the mind of this Court, not applicable to the case at bar for the fact is the
rationale in that case is not present in the instant case considering these salient
points:chanroblesvirtuallawlibrary
a) Teodora Ayson, the alleged wife of defendant Gregorio Hontiveros and allegedly not a
member of the Hontiveros Family, is not shown to be really the wife of Gregorio, a fact
which Gregorio also denied in their verified answer to the amended
complaint;chanroblesvirtuallawlibrary
b) Teodora Ayson has not been shown to have acquired any proprietary right or interest in
the land that was litigated by Gregorio and Augusto, unlike in the cited case of Magbaleta
where it was shown that a stranger to the family acquired certain right;chanroblesvirtuallawlibrary
c) In the decision rendered by the appellate court no mention was made at all of the name
of Teodora Ayson as part-awardee of Lot 37 that was adjudged to Gregorio other than
himself who was therein described as a widower. Moreover, Teodora was never
mentioned in said decision, nor in the amended complaint and in the amended motion for
judgment on the pleadings that she ever took any part in the act or transaction that gave
rise to the damages allegedly suffered by the plaintiffs for which they now claim some
compensation.chanroblesvirtuallawlibrary
WHEREFORE, in the light of all the foregoing premises, the Court orders, as it hereby
orders, the dismissal of this case with cost against the plaintiffs.chanroblesvirtuallawlibrary
SO ORDERED.chanroblesvirtuallawlibrary
Petitioners moved for a reconsideration of the order of dismissal, but their motion was
denied.[7] Hence, this petition for review on certiorari. Petitioners contend: chanroblesvirtuallawlibrary
I. THE REGIONAL TRIAL COURT PALPABLY ERRED IN DISMISSING THE
COMPLAINT ON THE GROUND THAT IT DOES NOT ALLEGE UNDER OATH
THAT EARNEST EFFORTS TOWARD A COMPROMISE WERE MADE PRIOR TO
THE FILING THEREOF AS REQUIRED BY ARTICLE 151 OF THE FAMILY
CODE.chanroblesvirtuallawlibrary
II. THE REGIONAL TRIAL COURT PALPABLY ERRED IN NOT DENYING THE
MOTION FOR JUDGMENT ON THE PLEADINGS AND ORDERING A TRIAL ON
THE MERITS.chanroblesvirtuallawlibrary
Private respondents raise a preliminary question. They argue that petitioners should have
brought this case on appeal to the Court of Appeals since the order of the trial court judge
was actually a decision on the merits. On the other hand, even if petition for certiorari

were the proper remedy, they contend that the petition is defective because the judge of
the trial court has not been impleaded as a respondent.[8] chanroblesvirtuallawlibrary
Private respondents contention is without merit. The petition in this case was filed
pursuant to Rule 45 of the Rules of Court. As explained in Atlas Consolidated Mining
and Development Corporation v. Court of Appeals:[9] chanroblesvirtuallawlibrary
Under Section 5, subparagraph (2)(e), Article VIII of the 1987 Constitution, the Supreme
Court is vested with the power to review, revise, reverse, modify, or affirm on appeal or
certiorari as the law or the Rules of Court may provide, final judgments and orders of
lower courts in all cases in which only an error or question of law is involved. A similar
provision is contained in Section 17, fourth paragraph, subparagraph (4) of the Judiciary
Act of 1948, as amended by Republic Act No. 5440. And, in such cases where only
questions of law are involved, Section 25 of the Interim Rules and Guidelines
implementing Batas Pambansa Blg. 129, in conjunction with Section 3 of Republic Act
No. 5440, provides that the appeal to the Supreme Court shall be taken by petition for
certiorari which shall be governed by Rule 45 of the Rules of Court.chanroblesvirtuallawlibrary
The rule, therefore, is that direct appeals to this Court from the trial court on questions of
law have to be through the filing of a petition for review on certiorari. It has been held
that:chanroblesvirtuallawlibrary
x x x when a CFI (RTC) adjudicates a case in the exercise of its original jurisdiction, the
correct mode of elevating the judgment to the Court of Appeals is by ordinary appeal, or
appeal by writ of error, involving merely the filing of a notice of appeal - except only if
the appeal is taken in special proceedings and other cases wherein multiple appeals are
allowed under the law, in which even the filing of a record on appeal is additionally
required. Of course, when the appeal would involve purely questions of law or any of the
other cases (except criminal cases as stated hereunder) specified in Section 5(2), Article
X of the Constitution, it should be taken to the Supreme Court by petition for review on
certiorari in accordance with Rules 42 and 45 of the Rules of Court.chanroblesvirtuallawlibrary
By way of implementation of the aforestated provisions of law, this Court issued on
March 9, 1990 Circular No. 2-90, paragraph 2 of which provides:chanroblesvirtuallawlibrary
2. Appeals from Regional Courts to the Supreme Court. Except in criminal cases where
the penalty imposed is life imprisonment or reclusion perpetua, judgments of regional
trial courts may be appealed to the Supreme Court only by petition for review on
certiorari in accordance with Rule 45 of the Rules of Court in relation to Section 17 of the
Judiciary Act of 1948, as amended, this being the clear intendment of the provision of the
Interim Rules that (a)ppeals to the Supreme Court shall be taken by petition for certiorari
which shall be governed by Rule 45 of the Rules of Court.chanroblesvirtuallawlibrary
Under the foregoing considerations, therefore, the inescapable conclusion is that herein
petitioner adopted the correct mode of appeal in G.R. No. 88354 by filing with this Court

a petition to review on certiorari the decision of the Regional Trail Court of Pasig in Civil
Case No. 25528 and raising therein purely questions of law.chanroblesvirtuallawlibrary
In Meneses v. Court of Appeals, it was held:[10] chanroblesvirtuallawlibrary
It must also be stressed that the trial courts order of 5 June 1992 dismissing the
petitioners complaint was, whether it was right or wrong, a final order because it had put
an end to the particular matter resolved, or settled definitely the matter therein disposed
of and left nothing more to be done by the trial court except the execution of the order. It
is a firmly settled rule that the remedy against such order is the remedy of appeal and not
certiorari. That appeal may be solely on questions of law, in which case it may be taken
only to this Court; or on questions of fact and law, in which case the appeal should be
brought to the Court of Appeals. Pursuant to Murillo v. Consul, the appeal to this Court
should be by petition for review on certiorari in accordance with Rule 45 of the Rules of
Court.chanroblesvirtuallawlibrary
As private respondents themselves admit, the order of November 23, 1995 is a final order
from which an appeal can be taken. It is final in the sense that it disposes of the pending
action before the court and puts an end to the litigation so that nothing more was left for
the trial court to do.[11] Furthermore, as the questions raised are questions of law, petition
for review on certiorari is the proper mode of appeal. These questions are: (1) whether
after denying petitioners motion for judgment on the pleadings, the trial court could
dismiss their complaint motu proprio for failure to comply with Art. 151 of the Family
Code which provides that no suit between members of the same family shall prosper
unless it appears from the complaint, which must be verified, that earnest efforts towards
a compromise have been made but the same have failed; and (2) whether Art. 151 applies
to this case. These questions do not require an examination of the probative value of
evidence presented and the truth or falsehood of facts asserted which questions of fact
would entail.[12] chanroblesvirtuallawlibrary
On the other hand, petitioners contend that the trial court erred in dismissing the
complaint when no motion to that effect was made by any of the parties. They point out
that, in opposing the motion for judgment on the pleadings, private respondents did not
seek the dismissal of the case but only the denial of petitioners motion. Indeed, what
private respondents asked was that trial be held on the merits. chanroblesvirtuallawlibrary
Of course, there are instances when the trial court may order the dismissal of the case
even without a motion to that effect filed by any of the parties. In Baja v. Macandog,[13]
this Court mentioned these cases, to wit: chanroblesvirtuallawlibrary
The court cannot dismiss a case motu proprio without violating the plaintiffs right to be
heard, except in the following instances: if the plaintiff fails to appear at the time of the
trial; if he fails to prosecute his action for an unreasonable length of time; or if he fails to
comply with the rules or any order of the court; or if the court finds that it has no
jurisdiction over the subject matter of the suit.chanroblesvirtuallawlibrary

However, none of these exceptions appears in this case. chanroblesvirtuallawlibrary

Moreover, the trial court itself found that judgment on the pleadings is inappropriate not
only for the fact that [private respondents] in their answer . . . specifically denied the
claim of damages against them, but also because of the [rule] . . . that the party claiming
damages must satisfactorily prove the amount thereof. . . . Necessarily, a trial must be
held. chanroblesvirtuallawlibrary
Rule 19 of the Rules of Court provides:[14] chanroblesvirtuallawlibrary
SECTION 1. Judgment on the pleadings. Where an answer fails to tender an
issue, or otherwise admits the material allegation of the adverse partys
pleading, the court may, on motion of the party, direct judgment on
such pleading. But in actions for annulment of marriage or for legal
separation the material facts alleged in the complaint shall always be
proved.chanroblesvirtuallawlibrary
Under the rules, if there is no controverted matter in the case after the answer is filed, the
trial court has the discretion to grant a motion for judgment on the pleadings filed by a
party.[15] Where there are actual issues raised in the answer, such as one involving
damages, which require the presentation of evidence and assessment thereof by the trial
court, it is improper for the judge to render judgment based on the pleadings alone.[16] In
this case, aside from the amount of damages, the following factual issues have to be
resolved, namely, (1) private respondent Teodora Aysons participation and/or liability, if
any, to petitioners and (2) the nature, extent, and duration of private respondents
possession of the subject property. The trial court, therefore, correctly denied petitioners
motion for judgment on the pleadings. chanroblesvirtuallawlibrary
However, the trial court erred in dismissing petitioners complaint on the ground that,
although it alleged that earnest efforts had been made toward the settlement of the case
but they proved futile, the complaint was not verified for which reason the trial court
could not believe the veracity of the allegation. chanroblesvirtuallawlibrary
The absence of the verification required in Art. 151 does not affect the jurisdiction of the
court over the subject matter of the complaint. The verification is merely a formal
requirement intended to secure an assurance that matters which are alleged are true and
correct. If the court doubted the veracity of the allegations regarding efforts made to settle
the case among members of the same family, it could simply have ordered petitioners to
verify them. As this Court has already ruled, the court may simply order the correction of
unverified pleadings or act on it and waive strict compliance with the rules in order that
the ends of justice may be served.[17] Otherwise, mere suspicion or doubt on the part of
the trial court as to the truth of the allegation that earnest efforts had been made toward a
compromise but the parties efforts proved unsuccessful is not a ground for the dismissal
of an action. Only if it is later shown that such efforts had not really been exerted would
the court be justified in dismissing the action. Thus, Art. 151 provides: chanroblesvirtuallawlibrary

No suit between members of the same family shall prosper unless it should appear from
the verified complaint or petition that earnest efforts toward a compromise have been
made, but that the same have failed. It if is shown that no such efforts were in fact made,
the case must be dismissed.chanroblesvirtuallawlibrary
This rule shall not apply to cases which may not be the subject of compromise under the
Civil Code.chanroblesvirtuallawlibrary
Moreover, as petitioners contend, Art. 151 of the Family Code does not apply in this case
since the suit is not exclusively among family members. Citing several cases[18] decided
by this Court, petitioners claim that whenever a stranger is a party in a case involving
family members, the requisite showing of earnest efforts to compromise is no longer
mandatory. They argue that since private respondent Ayson is admittedly a stranger to the
Hontiveros family, the case is not covered by the requirements of Art. 151 of the Family
Code. chanroblesvirtuallawlibrary
We agree with petitioners. The inclusion of private respondent Ayson as defendant and
petitioner Maria Hontiveros as plaintiff takes the case out of the ambit of Art. 151 of the
Family Code. Under this provision, the phrase members of the same family refers to the
husband and wife, parents and children, ascendants and descendants, and brothers and
sisters, whether full or half-blood.[19] As this Court held in Guerrero v. RTC, Ilocos
Norte, Br. XVI:[20] chanroblesvirtuallawlibrary
As early as two decades ago, we already ruled in Gayon v. Gayon that the enumeration of
brothers and sisters as members of the same family does not comprehend sisters-in-law.
In that case, then Chief Justice Concepcion emphasized that sisters-in-law (hence, also
brothers-in-law) are not listed under Art. 217 of the New Civil Code as members of the
same family. Since Art. 150 of the Family Code repeats essentially the same enumeration
of members of the family, we find no reason to alter existing jurisprudence on the mater.
Consequently, the court a quo erred in ruling that petitioner Guerrero, being a brother-inlaw of private respondent Hernando, was required to exert earnest efforts towards a
compromise before filing the present suit.chanroblesvirtuallawlibrary
Religious relationship and relationship by affinity are not given any legal effect in this
jurisdiction.[21] Consequently, private respondent Ayson, who is described in the
complaint as the spouse of respondent Hontiveros, and petitioner Maria Hontiveros, who
is admittedly the spouse of petitioner Augusto Hontiveros, are considered strangers to the
Hontiveros family, for purposes of Art. 151. chanroblesvirtuallawlibrary
Petitioners finally question the constitutionality of Art. 151 of the Family Code on the
ground that it in effect amends the Rules of Court. This, according to them, cannot be
done since the Constitution reserves in favor of the Supreme Court the power to
promulgate rules of pleadings and procedure. Considering the conclusion we have
reached in this case, however, it is unnecessary for present purposes to pass upon this
question. Courts do not pass upon constitutional questions unless they are the very lis
mota of the case. chanroblesvirtuallawlibrary

WHEREFORE, the petition is GRANTED and the Order, dated November 23, 1995 of
the Regional Trial Court of Iloilo City, Branch 25 is SET ASIDE and the case is
remanded to the trial court for further proceedings not inconsistent with this decision.
chanroblesvirtuallawlibrary

SO ORDERED. chanroblesvirtuallawlibrary

Republic of the Philipppines

SUPREME COURT
Manila
FIRST DIVISION
[G.R. No. 137359. September 13, 2004]
EDWIN N. TRIBIANA, petitioner, vs. LOURDES M. TRIBIANA, Respondent.
DECISION
CARPIO, J.:
The Casechanroblesvirtuallawlibrary
This petition for review on certiorari[1] seeks to reverse the Court of Appeals
Resolutions[2] dated 2 July 1998 and 18 January 1999 in CA-G.R. SP No. 48049. The
Court of Appeals affirmed the Order[3] of the Regional Trial Court, Branch 19, Bacoor,
Cavite (RTC), denying petitioner Edwin N. Tribianas (Edwin) motion to dismiss the
petition for habeas corpus filed against him by respondent Lourdes Tribiana (Lourdes).
Antecedent Factschanroblesvirtuallawlibrary
Edwin and Lourdes are husband and wife who have lived together since 1996 but
formalized their union only on 28 October 1997. On 30 April 1998, Lourdes filed a
petition for habeas corpus before the RTC claiming that Edwin left their conjugal home
with their daughter, Khriza Mae Tribiana (Khriza). Edwin has since deprived Lourdes of
lawful custody of Khriza who was then only one (1) year and four (4) months of age.
Later, it turned out that Khriza was being held by Edwins mother, Rosalina Tribiana
(Rosalina). Edwin moved to dismiss Lourdes petition on the ground that the petition
failed to allege that earnest efforts at a compromise were made before its filing as
required by Article 151 of the Family Code.chanroblesvirtuallawlibrary
On 20 May 1998, Lourdes filed her opposition to Edwins motion to dismiss claiming that
there were prior efforts at a compromise, which failed. Lourdes attached to her opposition
a copy of the Certification to File Action from their Barangay dated 1 May
1998.chanroblesvirtuallawlibrary
On 18 May 1998, the RTC denied Edwins motion to dismiss and reiterated a previous
order requiring Edwin and his mother, Rosalina to bring Khriza before the RTC. Upon
denial of his motion for reconsideration, Edwin filed with the Court of Appeals a petition
for prohibition and certiorari under Rule 65 of the Rules of Civil Procedure. The appellate
court denied Edwins petition on 2 July 1998. The appellate court also denied Edwins
motion for reconsideration.chanroblesvirtuallawlibrary

Hence, this petition.

The Rulings of the RTC and the Court of Appeals chanroblesvirtuallawlibrary
The RTC denied Edwins motion to dismiss on the ground that the Certification to File
Action attached by Lourdes to her opposition clearly indicates that the parties attempted
to reach a compromise but failed.chanroblesvirtuallawlibrary
The Court of Appeals upheld the ruling of the RTC and added that under Section 412 (b)
(2) of the Local Government Code, conciliation proceedings before the barangay are not
required in petitions for habeas corpus.
The Issuechanroblesvirtuallawlibrary
Edwin seeks a reversal and raises the following issue for resolution:chanroblesvirtuallawlibrary
WHETHER THE TRIAL AND APPELLATE COURTS SHOULD HAVE
DISMISSED THE PETITION FOR HABEAS CORPUS ON THE GROUND
OF FAILURE TO COMPLY WITH THE CONDITION PRECEDENT UNDER
ARTICLE 151 OF THE FAMILY CODE.
The Ruling of the Courtchanroblesvirtuallawlibrary
The petition lacks merit. chanroblesvirtuallawlibrary
Edwin argues that Lourdes failure to indicate in her petition for habeas corpus that the
parties exerted prior efforts to reach a compromise and that such efforts failed is a ground
for the petitions dismissal under Section 1(j), Rule 16 of the 1997 Rules of Civil
Procedure.[4] Edwin maintains that under Article 151 of the Family Code, an earnest
effort to reach a compromise is an indispensable condition precedent. Article 151
provides:chanroblesvirtuallawlibrary
No suit between members of the same family shall prosper unless it should appear from
the verified complaint or petition that earnest efforts toward a compromise have been
made, but that the same have failed. If it is shown that no such efforts were in fact made,
the case must be dismissed.chanroblesvirtuallawlibrary
This rule shall not apply to cases which may not be the subject of compromise under the
Civil Code. chanroblesvirtuallawlibrary
Edwins arguments do not persuade us.chanroblesvirtuallawlibrary
It is true that the petition for habeas corpus filed by Lourdes failed to allege that she
resorted to compromise proceedings before filing the petition. However, in her opposition
to Edwins motion to dismiss, Lourdes attached a Barangay Certification to File Action
dated 1 May 1998. Edwin does not dispute the authenticity of the Barangay Certification

and its contents. This effectively established that the parties tried to compromise but were
unsuccessful in their efforts. However, Edwin would have the petition dismissed despite
the existence of the Barangay Certification, which he does not even
dispute.chanroblesvirtuallawlibrary
Evidently, Lourdes has complied with the condition precedent under Article 151 of the
Family Code. A dismissal under Section 1(j) of Rule 16 is warranted only if there is a
failure to comply with a condition precedent. Given that the alleged defect is a mere
failure to allege compliance with a condition precedent, the proper solution is not an
outright dismissal of the action, but an amendment under Section 1 of Rule 10 of the
1997 Rules of Civil Procedure.[5] It would have been a different matter if Edwin had
asserted that no efforts to arrive at a compromise have been made at all.chanroblesvirtuallawlibrary
In addition, the failure of a party to comply with a condition precedent is not a
jurisdictional defect.[6] Such defect does not place the controversy beyond the courts
power to resolve. If a party fails to raise such defect in a motion to dismiss, such defect is
deemed waived.[7] Such defect is curable by amendment as a matter of right without
leave of court, if made before the filing of a responsive pleading.[8] A motion to dismiss
is not a responsive pleading.[9] More importantly, an amendment alleging compliance
with a condition precedent is not a jurisdictional matter. Neither does it alter the cause of
action of a petition for habeas corpus. We have held that in cases where the defect
consists of the failure to state compliance with a condition precedent, the trial court
should order the amendment of the complaint.[10] Courts should be liberal in allowing
amendments to pleadings to avoid multiplicity of suits and to present the real
controversies between the parties.[11]chanroblesvirtuallawlibrary
Moreover, in a habeas corpus proceeding involving the welfare and custody of a child of
tender age, the paramount concern is to resolve immediately the issue of who has legal
custody of the child. Technicalities should not stand in the way of giving such child of
tender age full protection.[12] This rule has sound statutory basis in Article 213 of the
Family Code, which states, No child under seven years of age shall be separated from the
mother unless the court finds compelling reasons to order otherwise. In this case, the
child (Khriza) was only one year and four months when taken away from the
mother.chanroblesvirtuallawlibrary
The Court of Appeals dismissed Edwins contentions by citing as an additional ground the
exception in Section 412 (b) (2) of the Local Government Code (LGC) on barangay
conciliation, which states:chanroblesvirtuallawlibrary
(b) Where the parties may go directly to court. the parties may go directly to court in the
following instances:chanroblesvirtuallawlibrary
xxxchanroblesvirtuallawlibrary
2) Where a person has otherwise been deprived of personal liberty calling
for habeas corpus proceedings;chanroblesvirtuallawlibrary

xxx.chanroblesvirtuallawlibrary
Under Rule 102 of the 1997 Rules of Civil Procedure, a party may resort to a habeas
corpus proceeding in two instances. The first is when any person is deprived of liberty
either through illegal confinement or through detention. The second instance is when
custody of any person is withheld from the person entitled to such custody. The most
common case falling under the second instance involves children who are taken away
from a parent by another parent or by a relative. The case filed by Lourdes falls under this
category.chanroblesvirtuallawlibrary
The barangay conciliation requirement in Section 412 of the LGC does not apply to
habeas corpus proceedings where a person is deprived of personal liberty. In such a case,
Section 412 expressly authorizes the parties to go directly to court without need of any
conciliation proceedings. There is deprivation of personal liberty warranting a petition for
habeas corpus where the rightful custody of any person is withheld from the person
entitled thereto.[13] Thus, the Court of Appeals did not err when it dismissed Edwins
contentions on the additional ground that Section 412 exempts petitions for habeas
corpus from the barangay conciliation requirement.chanroblesvirtuallawlibrary
The petition for certiorari filed by Edwin questioning the RTCs denial of his motion to
dismiss merely states a blanket allegation of grave abuse of discretion. An order denying
a motion to dismiss is interlocutory and is not a proper subject of a petition for certiorari.
[14] Even in the face of an error of judgment on the part of a judge denying the motion to
dismiss, certiorari will not lie. Certiorari is not a remedy to correct errors of procedure.
[15] The proper remedy against an order denying a motion to dismiss is to file an answer
and interpose as affirmative defenses the objections raised in the motion to dismiss. It is
only in the presence of extraordinary circumstances evincing a patent disregard of justice
and fair play where resort to a petition for certiorari is proper.[16]chanroblesvirtuallawlibrary
The litigation of substantive issues must not rest on a prolonged contest on technicalities.
This is precisely what has happened in this case. The circumstances are devoid of any
hint of the slightest abuse of discretion by the RTC or the Court of Appeals. A party must
not be allowed to delay litigation by the sheer expediency of filing a petition for certiorari
under Rule 65 based on scant allegations of grave abuse. More importantly, any matter
involving the custody of a child of tender age deserves immediate resolution to protect
the childs welfare.chanroblesvirtuallawlibrary
WHEREFORE, we DISMISS the instant petition for lack of merit. We AFFIRM the
Resolutions of the Court of Appeals dated 2 July 1998 and 18 January 1999 in CA-G.R.
SP No. 48049. The Regional Trial Court, Branch 19, Bacoor, Cavite is ordered to act with
dispatch in resolving the petition for habeas corpus pending before it. This decision is
IMMEDIATELY EXECUTORY.chanroblesvirtuallawlibrary
SO ORDERED.chanroblesvirtuallawlibrary