MOTIONS 3.) "Section 6. Proof of service to be filed with motion.

— No motion be acted upon by the court, without

proof of service of the notice, except when court is satisfied that rights of the adverse party or parties are
1.MANUEL YAP vs. COURT OF APPEALS, RAYMONDAND LYDIA TOMASSI not affected."
4. )GR: notice of motion is required where a party has a right to resist the relief sought by the motion and
1.) Sept. 11, 1973- Sps.Tomassi filed a complaint for Damages against Yap, before the CFI of Cebu
principles of natural justice demand that his right is not affected without an opportunity to be head.
2.) Yap filed his Answer with Special Defenses and Counterclaim, after which,trial ensued.
-3-day-notice required by law intended not for benefit of the movant but to avoid surprises
3.) On January 31, 1978-TC judgment against Yap, to pay private respondents P30,000.00, as moral and
upon the adverse party and to give the adverse party time to study and meet the arguments of the
exemplary damages, P20,000.00, as actual damages, P5,000.00, as attorney's fees, and the costs of suit.
motion.
4.) February 10, 1978- Copy of the Decision was received by Yap.
5. ) Motion in question NOT affect substantive rights of SPS- merely seeks to extend period to file Record
5.) March 2, 1978- Yap filed Notice of Appeal
on Appeal, which extension may be granted by TC upon application made prior to the expiration of the
6.) March 7, 1978- Yap filed Cash Appeal Bond and Motion for Extension of 20 days from March 13, 1978
original period.
(or until April 2, 1978) to file his Record on Appeal. NOT acted upon by the TC
6. ) Neither was there any claim that said Motion, grounded on justifiable reason, was interposed to
7.) March 30, 1978/within the extended period prayed for- Yap submitted his Record on Appeal.
delay the appeal.
- Sps filed a Motion for the Issuance of Writ ofExecution alleging that the Decision had already
7. ) Moya vs. Barton- Motion requesting an extension to file Record on Appeal may be heard ex-parte.
become final and executory as Yap’s Motion for extension of time to file Record on Appeal failed to
8.) Que Tiac vs. Republic- said Motion not to be a litigated or a contentious Motion and may be acted
comply with the requirements of the Rules of Court on Motions, and therefore, did not toll the running
upon even without proof of service on adverse party.
of the period to perfect an appeal.
In the same case, this Court held:
8.) April 24, 1978- TC disapproved Yap’s Record on Appeal for being filed out of time:(TC RULING infavor
9.) Liberally giving every litigant the assistance in obtaining a fair, expeditious and reasonable
of Sps.)
determination of his rights as he seeks recourse to the court of law for justice without technicalities and
-Yap’s MOTION FOREXTENSION OF TIME TO FILE RECORD ON APPEAL, did not contain any
without strict adherence to the letter of the Rules, thereby promoting their objective.
notice of hearing, the COURT did not act on it.
10.) Dismissal of appeals on purely technical grounds is frowned upon as the policy of the Court is to
-reglementaryperiod expired on March 13, 1978, without any extension granted to Yap
encourage the hearing of appeals on the merits.
9.) Yap’s MR denied by the TC
- Litigants should be afforded every opportunity to establish the merits of their cases without the
10.) (CA Ruling infavor of Sps.)Yap’s Petition for "Certiorari and Mandamus" with CA w/c dismissed the
constraints of technicalities.
Petition; Yap’s MR also denied
11.) CFI directed to approve petitioner's Record on Appeal and to elevate the same to CA.
11.) Not disputed that Yap’s Notice of Appeal, Cash Appeal Bond, and Motion for Extension to File Record
on Appeal were seasonably filed, and that the Record on Appeal was submitted within the extended
period requested.

ISSUE:
Main-W/nMotion for extension should mandatorily comply with the requirements of the Rules on
Motions before the same may be acted upon by the trial Court= NO
Minor-W/n motion for extension of time to file record on appeal, a litigated and contentious motion
requiring a notice of hearing before it may be acted upon by the trial court or is it one that may be heard
ex-parte and therefore does not need a notice of hearing?
W/n CAin disapproving petitioner's record on appeal which was filed within theextended period
prayed fornot depart from the liberal posture adopted by the SC in a long line of cases to disregard
technicalities so that cases may be decided on their merits= CA departed, it erred.

SC:
1.) "Section 4. Notice. — Notice motion be served by the applicant to all parties concerned at least 3
days before the hearing, together with a copy of the motion, and other papers accompanying it. Court,
however, for good cause may hear a motion on shorter notice, specially on matters which Court may
dispose of on its own motion.
2.) "Section 5. Contents of Notice. — Notice be directed to the parties concerned, and state time and
place for hearing of the motion.
2. IGMEDIO AZAJAR vs. CA and CHAM SAMCO & SONS, INC. (Cham Samco)
1.) Azajar filed complaint against Cham Samco in the CFI of Camarines Sur.
-Azajar purchased from Cham thru Cham’s agent, 100 Kgs of nails various sizes, specified in one of Cham’s printed order
forms,
- Azajar gave the agent P18,000.00 full payment but in breach of contract, Chamoffered to deliver only part of the
quantity ordered.
2.) Cham’s Motion to Dismiss 2 grounds: (a) failure tostate a cause of action — the complaint's language indicating not a perfected
sale butmerely an "offer to buy by Azajar that was partly accepted by Cham," and failing toshow that as explicitly required by the
order form, prices been confirmed by Cham’s Manila Office, and (b)improper venue— Cham’s invariable condition that "any legal
action thereon must be instituted in Manila
3.) Motion to dismiss contained Notice addressed to the Clerk of Court reading asfollows:
"The Clerk of Court
Court of First Instance of Camarines Sur
Naga City
S i r:Please submit the foregoing motion to the Court for its consideration andresolution immediately upon receipt thereof.
Makati, Rizal for Naga City, February 4, 1974
(SGD) POLO S. PANTALEON
Copy furnished:Atty. Augusto A. PardaliasNaga CityNF-927" 4
4.) February 20, 1974-Azajar filed motion dated todeclare Cham in default
-Cham’sNotice was fatally defective and rendered the Motion to Dismissincapable of tolling the period to answer,
(TC RULING in favor of Azajar)-granted by TC.
-By Order dated February 22,1974 the TC pronounced Cham in default and allowed Azajar to present evidence ex-parte.
-February 4, 1974, Cham instead of filing an Answer, filed a "Motion to Dismiss" which, is not a motion at all because:
-"notice" therein is directed to the Clerk of Court instead of to the party concerned (as required by Section 5, Rule 15 of
the Rules of Court)
-without the requisite notice of time and place of hearing, that a motion"with a noticeof hearing (a) directed to the Clerk
of Court not to the parties; and(b) merely stating that the same be "submitted for resolution of the HonorableCourt
upon receipt thereof,"
-copy of which motion was duly furnished to and received by "the adverse counsel, is fatally defective and did not toll
the runningof the period to appeal
- Consequently, since "motion to dismiss in this case is a mere scrap of paper because it’s without the requisite notice of
time and place of hearing, filing thereof didnot suspend the running of the period to file the required responsive pleading, hence,
from February 4, 1974 to February 21, 1974, (17) days lapsed and Cham failed to file any responsive pleading
- March 30, 1974-TC rendered judgment by default against Cham ordering it to deliver to the Azajar nails mentioned in
the Order Form and pay actual, consequential, interest, exemplary damages, litig. Exp. and costs.
5.) April 9, 1974- Cham’s Motion for New Trial
-its failure to observe rules of notice of motions was due to excusable negligence because grounds alleged in the Motion
to Dismiss were all nature and character that addressed to a motu proprio resolution by court hence, hearing dispensable.
-also alleged defenses available to Cham which if duly allegedand proven, would absolve it from all liability.
-DENIED by TC
6.) (1st RULING OF CA infavor of Azajar)Cham’s Pet. For certiorari with CA- dismissed.
7.) (2nd RULING OF CA infavor of Cham) Cham’s MR with CA- granted
-CA set aside the TC’s order of default, judgment by default and Order denying Cham’s motion for new trial,
- directed TC to allow Cham file its answer to the complaint and upon due joinder of issues, to try and decide the case on
the merits
-notice in the motion addressed to the clerk of court asking him to submit the motion for the consideration of the court
is a substantialcompliance with the provision of section 3 Rule 16 of the Rules of Court. Under the said rule, the Court has the
alternative of either a.) hearing the case or b.) deferring the hearing and determination thereof until the trial on the merits.
-thus upon the filing of said motion TC should have set the motion for hearing oroutrightly deny the motion, or
postpone the hearing until the trial on the ground that the grounds thereof do not appear to be indubitable/definite.
-prompt filing and apparently valid grounds invoked in the motion are not the acts anddeclarations of a
defaulting party
- even assuming that the declaration of default of Cham was in order, CA find that TC committed a grave abuse of
discretion when it deniedthe motion for new trial filed by the Cham not only on the ground ofexcusable negligence but also
on ground that it hasmeritorious defense.
- (E)xcessive damages been awarded to Azajar; inaddition for Cham to deliver to Azajar nails ordered by Azajar,
Cham was also ordered to pay not only actual damages for profits thatAzajarcould earn but also consequential damages for
unrealized profits that saidearnings and capital of Azajar could earn, plus interest in both instances and etc. Thus for capital
of Azajar of P18,100.00 inpurchase of nails, Cham was ordered to pay damages of P37,500.00, w/ interest = P40,000,more
than double the value of said investment of respondent. Under Section1, Rule 37 award of excessive damages could be a
ground
for new trial."
ISSUE: W/n CA is correct in ruling infavor of Cham despite the latter’s failure to comply w/ requisite notice of hearing. YES
because Cham is justified by his excusable negligence
SC:
1.) The ends of justice would be better served in this case if to brush aside technicality and afford the Cham its day in
court."
-It was wrong for Cham to have fail to set its motion to dismiss for hearing on a specified date -and time.
- Law explicitly requires that notice of a motion be served by appellant to all parties concerned at least three (3) days
before hearing, together with copy of motion, and of any affidavits and other papers accompanying it
-the notice be directed to the parties concerned, stating the time and place for the hearing of the motion
2.) Uniform holding of SC- failure to comply with the requirement is a fatal flaw.
-Such notice is requiredto avoid surprises upon the opposite party and give the latter time to study and meet
thearguments of the motion, and to determine or make determinable the time of
submission of the motion for resolution.
3) Cham quite frankly admits its error.
-It pleads that under circumstances the error is not regarded as irremediable or that it is excusable negligence,
warranting relief.
-argues that legal and logicalconsiderations, which it took to be tenable, caused it to theorize that a hearing on
the motion was dispensable.
- adverts to its possession of affirmative defenses inaddition to those set out in its motion to dismiss which, if
ventilated and established at thetrial, would absolve it from all liability under the complaint
4.) Cham’s belief that it was not necessary that its motion to dismiss be set for hearing was engendered by two factors,
namely:
a.) the fact that while Rules of Court "specify motions which can be heard onlywith prior service upon adverse parties,said
Rules do not point out which writtenmotions may be ex parte, preferring, it appears, to leave to the court, in motions other
thanthose specified, the discretion either to ex parte resolve or to call the parties to a hearing; and b) the further fact that
its motion to dismiss was based on two grounds which ahearing was superfluous/unnecessary/redundant, the 1st, failure to
state a cause of action, determinable exclusively from the allegations of the complaint and no evidence beingallowable
thereon; and the 2nd, improper venue, being resolvableexclusively on the basis of documents annexed to the motion.
5.) These considerations, not erase movant's duty to give notice to the adverse party of the date and time of the hearing on
its motion, the purpose of said notice being, as not only to give the latter time to oppose the motion if so minded, butalso
to determine the time of its submission for resolution.
6.) Without such notice, theoccasion would not arise to determine with reasonable sureness whether and within whattime
the adverse party would respond to the motion, and when the motion might already
be resolved by the Court.
7.)Duty to give that notice imposed on the movant, not on the Court.
8.) Reasons for Cham’s erroneous notion of the dispensability of hearingon its motion to dismiss are with credibility.
-This circumstance, taken together with the fact, found by CA and not disputed by Azajar, that Cham has
meritorious defenses which if proven would defeat Azajar's claim against it, and the eminent desirability more than once
stressed by SC that cases should be determined on the merits after full opportunity to all parties forventilation of their
causes and defenses, rather than on technicality or some proceduralimperfections, all lead to concurrence with the CA that
"the ends of justice would be better served in this case if we brush aside technicality and afford thepetitioner its day in
court."
9. ) Hence, decision of CA granting Cham’s MR is affirmed.
3. KKK FOUNDATION INC. VS. RTC JUDGE CALDERON-BARGAS & IMELDA ANGELES
1.) March 1, 2002- KKK filed complaint for Annulment of Extra-judicial Foreclosure of Real Estate Mortgage
and/or Nullification of Sheriff's Auction Sale and Damages with Prayer for the Issuance of TRO and/or Writ of
Preliminary Injunction in RTC Rizal.
-auction sale was made with fraud and/or bad faith since there was no public bidding
- foreclosed properties awarded and sold to Angeles for an inadequate
- auction sale involved 8 parcels of land covered by individual titles but were sold en masse.
2.) March 7, 2002- Judge Calderon-Bargas issued TRO preventing Angeles from consolidating her ownership to
the foreclosed properties.
-KKK and Angeles executed a Compromise Agreement wherein KKK agreed to pay Angeles t bid price of 8
parcels of land within 20 days
- Parties filed Motion to Approve Compromise Agreement
3.) April 1, 2002- KKK’s Urgent Ex-Parte Motion to Recall Compromise Agreement since other property owner
and trustees of KKK not consulted prior to signing of agreement.
-Angeles opposed the motion.
4.) May 2, 2002- Judge issued an Order- Urgent Ex-Parte Motion to Recall Compromise Agreement and Motion
to Approve Compromise Agreement both failed to comply with Sec[s]. 4 and 5, Rule 15 since both proceedings
have no specific date of hearing hence, considered mere scraps of paper.
5.) June 28, 2002 Decision- TC approved the Compromise Agreement in w/c KKK shall pay to Angeles, the
bid price for all 8 titles subject of the auction sale plus taxes [and/or] assessments; Upon the payment of
amount, the Angeles shall and deliver to the KKK Certi􀀿cate of Deed of Redemption
6.) Angeles moved for the issuance of a writ of execution.
7.) September 9, 2002- TC required KKK to comment on the motion within (10) days from receipt
8.) October 3, 2002- TC directed Clerk of Court to issue a writ of execution.
-TC received petitioner's Motion for Extension of Time to File Comment with Entry of Appearance which was
denied on October 10, 2002.
9.) KKK’s MR of the October 3, 2002 Order
10.) KKK’s Certiorari with CA alleging that Judge of TC erred when:
-she issued the October 3, 2002 and the October 10, 2002 Orders even before KKK could file its comment
-she granted the Motion for Issuance of Writ of Execution although it lacked the requisite notice of hearing
- writ of execution changed the tenor of the decision dated June 28, 2002.
11. CA Ruling against KKK:
KKK not deprived of due process when TC issued October 3, 2002 and October 10, 2002 Orders since KKK was
given sufficient time to file its comment
-CA not rule on the 2nd & 3rd issues after noting that KKK’s MR of the October 3, 2002 Order not yet been
resolved by TC. TC’s denial of KKK’s MR not operate to reinstate the petition because at the time it was filed,
KKK had no cause of action.
1ST ISSUE: W/n KKK was deprived due process when TC issued October 3, 2002 and October 10, 2002 Orders
before KKK could file its comment. No.
SC:
- TC gave KKK (10) days from Sep. 9, 2002 to file its Comment to Angeles's Motion for Issuance of Writ of
Execution.
-KKK claims that it received the Order only on September 21, 2002,
- Angeles counters that KKK received it on September 12, 2002.
SC believe Angeles since TC itself declared in its Order dated October 10, 2002 that Order dated Sep. 9, 2002
was personally served upon KKK on Sep. 12, 2002. Thus, KKK had until Sep. 22, 2002 to file its Comment or
request for extension of time.
-Consequently, KKK motion for extension and comment not seasonably filed and such procedural lapse binds
KKK.
2nd ISSUE: W/n TC erred in granting the Motion for Issuance of Writ of Execution although it lacked the
requisite notice of hearing. No, because the purpose of notice is still satisfied because KKK was given 10 days
to file Comment
GR-Motion which does not meet the Secs. 4 & 5 of Rule 15 is considered a worthless piece of paper, which
Clerk of Court no right to receive and TC no authority to act upon.
- Service of copy of motion containing notice of time and place of hearing of that motion is mandatory
requirement, and failure of movants to comply renders motions fatally defective.
EXPTN: (1) rigid application will result in manifest failure or miscarriage of justice especially if a party
successfully shows that alleged defect in the questioned final and executory judgment is not apparent on its
face or from the recitals contained therein; (2) interest of substantial justice will be served;
(3) resolution of the motion addressed solely to the sound and judicious discretion of court;(4) injustice to
adverse party not commensurate with degree of his thoughtlessness in not complying with procedure
prescribed
-Purpose of Notice of hearing- integral component of procedural due process to afford adverse parties chance
to be heard before motion is resolved by court; adverse party is given time to study and answer arguments in
motion.
Case at Bar- While Angeles's Motion for Issuance of Writ of Execution contained a notice of hearing, it did
not particularly state the date and time of hearing. BUT, SC still find that KKK was not denied procedural due
process because upon receiving the Motion for Issuance of Writ of Execution, TC issued an Order dated
September 9, 2002 giving KKK ten (10) days to file its comment and TC ruled on the motion only after the
reglementary period to file comment lapsed. Clearly, KKK was given time to study and comment on the
motion for which reason, the very purpose of a notice of hearing had been achieved.
-Procedural rules liberally construed to promote their objective and to assist in obtaining a just, speedy and
inexpensive determination of any action and proceeding.
3rd ISSUE: W/n writ of execution changed the tenor of the decision dated June 28, 2002. Yes, it’s void.
-Compromise Agreement approved by TC in its Decision dated June 28, 2002 merely provided that KKK would
pay Angeles the bid price for the 8 parcels of land subject of the auction.
- But when TC issued the writ of execution, the writ gave Sheriff Bisnar option "to allow consolidation of the
subject real properties in favor of Angeles
- Writ of execution imposed upon KKK an alternative obligation which was not included or contemplated in the
Compromise Agreement.
-While complaint originally sought to restrain Angeles from consolidating her ownership to foreclosed
properties, that has been superseded by the Compromise Agreement. Therefore, writ of execution which
directed Sheriff Bisnar to "cause the Register of Deeds of Morong, Rizal, to allow the consolidation of the
subject real properties in favor of Angeles" is clearly erroneous because the judgment under execution failed
to provide for consolidation.
-Because the writ of execution varied the terms of the judgment and exceeded them, it had no validity.
-Petition PARTIALLY GRANTED.
-writ of execution issued on by Judge Adelina Calderon-Bargas is declared NULL and VOID.
-Case be REMANDED to TC which is ORDERED to issue another writ of execution against KKK in conformity with
the Decision dated June 28, 2002 of the trial court.
- without prejudice to filing a new motion for consolidation by Angeles.
MOTIONS FOR BILL OF PARTICULARS (MBOP)
4. JOSE SANTOS vs. LORENZO J. LIWAG

1.) June 8, 1964- Santos filed a complaint against Liwag with the CFI of Manila, docketed seeking
Annulment of certain documents, attached to complaint as Annexes A,B,C as having been executed by
means of misrepresentations, machination, false pretenses, threats, and other fraudulent means, and for
damages and costs
2.) July 4, 1964- Liwag filed a motion, asking TC that Santos be ordered to submit more definite
statement or bill of particulars on certain allegations of the complaint, and facts constituting the
misrepresentations, etc. employed by Liwag in execution of documents in question so that Liwag could
be well informed of charges filed against him, for him to prepare intelligent and proper pleading
-Liwag claimed that allegations in complaint are indefinite and uncertain, and conflicting.
3.) Santos opposed motion- allegations in his complaint are sufficient and contain ultimate facts
constituting his causes of action and that the subject of Liwag’s motion is evidentiary in nature.
4.)TC RULING infavor of Liwag- granted Liwag’s Motion
-directed Santos "to submit a bill of particulars with respect to the paragraphs specified in Liwag’s motion
5.) Santos failed to comply TC Order, hence TC acting upon previous motion Liwag, dismissed complaint
with costs against the Santos.

ISSUE: W/n the TC is correct is dismissing the complaint upon failure of Santos to submit BOP. Yes

SC:
1.) No merit in the appeal.
2.) Allowance of a motion for a more definite statement of bill of particular rests within the sound judicial
discretion of the court and, as usual in matters of a discretionary nature, the ruling of TC in that regard
will not be reversed unless there has been a palpable abuse of discretion or a clearly erroneous order.
3.) In the instant case, the complaint is without doubt imperfectly drawn and suffers from vagueness
and generalization to enable the defendant (Liwag) property to prepare a responsive pleading and to
clarify issues and aid the court in an orderly and expeditious disposition of the case.
4.) Present action- annulment of documents which have been allegedly executed by reason of deceit,
machination, etc.
5.) Deceit, machination, false pretenses, misrepresentation, and threats are largely conclusions of law
and mere allegations thereof without statement of the facts to which such terms have reference are
not sufficient.
6.)Allegations must state the facts and circumstances from which the fraud, deceit, etc. may be inferred
as a conclusion.
7.)In his complaint, Santos merely averred that all the documents sought to be annulled were all
executed through the use of deceits, etc. w/o particular facts on which alleged fraud, deceit, etc. are
predicated.
8.)Hence, it was proper for TC to grant Liwag’s motion for a bill of particulars, and when the Santos failed
to comply with the order, TC correctly dismissed the complaint.
5. FAUSTA AGCANAS, JUAN MIGUEL, JUANITA MIGUEL, assisted by her husband ULPIANO PASION,
assisted by her husband JUAN PASCUAL, plaintiffs-appellees, vs. BRUNO MERCADO, and ANTONIO
DASALLA, defendants-appellants
1.) Nov. 25, 1956- Agcanas’ action to recover portions land in Isabela, and damages w/CFI Isabela
2.) Dec. 4- Mercado filed a MBOP w/ notice of hearing on December 8
-since the motion was actually received in court only on December 12 the court set it for hearing on
December 22.
3.) Dec.17- Mercado’s Motion to dismiss complaint, with prayer that consideration of their MBOP be
held in abeyance pending resolution of their motion to dismiss.
4.) Dec.22- (date set by the court for hearing of MBOP and by Mercado for hearing of their Motion to
Dismiss)- TC issued Order postponing "consideration" of both motions to December 29.
5.) March 7, 1957- TC denied motion to dismiss and ordered Mercado "to answer the complaint within
reglementary period provided for by Rules of Court."
6.) October 29- date for hearing of case on the merits, notice of which was duly received by Mercado.
7.) Mercado not filed their answer, hence, on October 17, Agcanas moved to have them declared in
default w/c the court issued with another order commissioning the clerk of court to receive Agcanas'
evidence.
8.) On October 21- Mercado’s Motion to cancel hearing scheduled for October 29, on two grounds-
one of w/c was that MBOP not yet resolved.
9.) October 26- setting of Motion to cancel
-When Mercado arrived in court on that day, they learned that an order of default been issued
-Mercado immediately filed Motion asking that the Order of default be set aside; that their pending
MBOP be resolved; that they be given a reasonable period thereafter to file their answer to the
complaint.
10.) December 13- TC RULING infavor of Agcanas- denied the motion of Mercado
11.) January 4, 1958- TC denied Mercado’s MR for Order of Denial
12.) January 24- Mercado filed their record on appeal (to SC from the order of December 13, 1957), but
as they subsequently filed a petition for relief from the judgment by default, they asked that
consideration and approval of their record on appeal be held in abeyance until said petition had been
resolved.
- request was granted.
13.) Mercado's petition for relief, filed on January 28, was denied on March 21, as was also, on
September 20, their MR of the order of denial.
14.) On October 4- TC denied Mercado’s motion for a writ of preliminary injunction to restrain execution
of the judgment by default.
-In MBOP, suspended period continue to run upon service on the movant of BOP, if motion is granted, or
of notice of its denial, but in any event he shall have atleast/not less than five days to file his responsive
pleading.
2.) When Mercado filed motion to dismiss, they requested that resolution of their previous MBOP be
held in abeyance.
-This was practical, because if TC granted the motion to dismiss there’s no need for a BOP.
-Resolution of the MBOP was necessary only in the event that court should deny, as it did, the motion
to dismiss, in which case the period to file an answer remained suspended until MBOP is denied or, it
is granted, until the bill is served on the moving party.
3.) TC deemed Mercado to "tacitly waive their right to push through hearing of MBOP because of their
failure to set it for hearing or to ask the clerk of court to calendar it after denial of the motion to dismiss.
-Mercado set the motion for hearing on December 8, 1956, although not heard on that day because it
arrived in court only on December 12.
-Thereafter Mercado did not have to reset it, as the clerk of court scheduled it for hearing on December
22 and on that day TC issued an order that consideration of the motion to dismiss, and MBOP, is
postponed to December 29
-As to W/n both motions were actually heard on December 29 not appear of record. But heard or not,
the motions should be considered submitted, and it was the clear duty of the court to resolve the
MBOP, as it did the motion to dismiss.
-No action having been taken thereon until the present, the period to answer has not yet expired. TC,
erred in declaring Mercado in default and in taking all the subsequent actions it did in the case.
-Hence, The order of default issued and the decision rendered by TC court are set aside and
the case is remanded for further proceedings, pursuant to the Rules.

ISSUE: Mercado's 18 assignments of error may be reduced to a single proposition:

Whether or not upon denial of a defendants' (Mercados’s) motion to dismiss, the reglementary period
to file an answer resumes running even though MBOP of the same defendants is still pending and
unresolved. No. The MBOP should still be resolved hence periof to file answer doed not resume.

SC:
1.) Both motion to dismiss and a MBOP interrupt the time to file a responsive pleading.
- In motion to dismiss, period starts running again as soon as the movant receives copy of the order of
denial.
6. JOSELITA SALITA vs. Judge DELILAH MAGTOLIS & ERWIN ESPINOSA
1.) Espinosa & Salita were married at Ermita, Manila, on 25 January 1986.
- year later, union turned sour; They separated in fact in 1988.
2.) Espinosa sued for annulment on the ground of Salita's psychological incapacity.
3.) January 1992- Pet, for annulment filed before the RTC Quezon City
-sometime in 1987, Espinosa realize that Salita was psychologically incapacitated existed at the time of
the marriage although the same became manifest only thereafter.
4.) Salita filed MBOP being dissatisfied with allegation in Pet.; GRANTED by TC
5.) In BOP of Espinosa, he specified:
-at time of their marriage, Salita was psychologically incapacitated to comply with the essential marital
obligations of their marriage in that she was unable to understand and accept the demands made by his
profession — that of a newly qualified Doctor of Medicine — upon Espinosa's time and efforts
-Salita frequently complained of his lack of attention to her, even to her mother, whose intervention
caused Espinosa to lose his job.
6.) Salita not contended with BOP- arguing that assertion in BOP is a statement of legal conclusion and
not an averment of 'ultimate facts, from which such a conclusion may properly be inferred
7.) TC infavor of Espinosa’s BOP- upheld sufficiency of BOP and directed Salita to file her responsive
pleading.
8.) Salita’s Pet with SC referred to CA for resolution CA RULING infavor of Espinosa w/c denied her
petition
- To require more details, to insist on a specification of Salita's particular conduct or behavior with the
corresponding 'circumstances of time, place and person' indicating her alleged psychological incapacity
would be to ask for information on evidentiary matters.
-To obtain evidentiary details, Salita may avail different modes of discovery
-Whether Espinosa's averments in his BOP constitute psychological incapacity in the contemplation of
Family Code is a question that may be resolved in a motion to dismiss or after trial on the merits of the
case, not in a
MBOP.
9.) Salita rationalizes that her insistence on the specification of her particular conduct or behavior with
the corresponding circumstances of time, place and person not call for information on evidentiary
matters because w/o these details she cannot adequately and intelligently prepare her answer to the
petition.
ISSUE: W/n BOP submitted by Espinosa is of sufficient definiteness or particularly to enable Salita to
properly prepare her responsive pleading or for trial. YES. To demand more would be tantamount to
evidentiary matters
SC:
1.) Complaint only needs to state the "ultimate facts constituting the plaintiff's cause.
-Ultimate facts -those facts which the expected evidence will support
-not refer to the details of probative matter or particulars of evidence by which these material elements
are to be established."
-facts w/c evidence on trial will prove, and not the evidence required to prove the existence of those
facts.
2.) MBOP will not be granted if complaint, while not very definite, nonetheless already states a sufficient
cause of action.
3.) MBOP may not call for matters which should form part of proof of complaint upon trial. Such
information may be obtained by other means. 12
4.) BOP filed by Espinosa is sufficient to state a cause of action, and to require more details from
Espinosa would be to ask for information on evidentiary matters. Salita already been adequately
apprised of Espinosa’s cause of action against her.
5. )Based on allegations (see bolded facts), Salita can already prepare her responsive pleading or for trial.
6.)To demand for more details would be asking for information on evidentiary facts — facts necessary to
prove essential or ultimate facts.
7.)To obtain evidentiary matters is not the function of a MBOP.
8.) Tantuico, Jr. v. Republic—particulars prayed for, such as names of persons, names of
corporations, dates, amounts involved, a specification of property for identification purposes, the
particular transactions involving withdrawals and disbursements, and a statement of other material facts
as would support conclusions and inferences in the complaint, not evidentiary in nature. On the contrary,
those particulars are material facts that should be clearly and definitely averred in the complaint in order
that the defendant may, in fairness, be informed of the claims made against him to the end that he may
be prepared to meet the issues at the trial.
9.) Such pronouncement cannot apply to the instant case.
- such case involves alleged "misappropriation and theft of public funds, plunder of the nation's wealth,
extortion, blackmail, bribery, embezzlement, and other acts of corruption, betrayal of public
trust and brazen abuse of power.
-respondents therein pray for reconveyance, reversion, accounting, restitution and damages and alleged
illicit acts should be fully documented.
-Instant case, concerns marital relationship.
- unreasonable, to document each and every circumstance of marital disagreement.
Complaining spouse will have to prove his case, but that will not come until trial begins.
10. SC ordered immediate resumption of the annulment proceedings which already been delayed for
more than two years now, even before it could reach its trial stage.
11.) Whether petitioner is psychologically incapacitated should be immediately determined.
MOTION TO DISMISS (MD)
7. BENEDICTO RAMOS vs. Judge ELVIRO L. PERALTA, SPS JUVENCIO ORTANEZ and JULIANA S. ORTANEZ
(SPS), MINDANAO INSURANCE CO., INC. (MIC) and P. R. ROMAN, INC (PR).
1. Ramos-Lessee started occupying Salgado fishpond located at Balut Pilar, Bataan in 1964 virtue of a
lease contract; Sps-Lessor
-original lease for (5) years from January 1, 1964 to January 1, 1990, was renewed several times, last
renewal June 28, 1974 under a "Kasunduan sa Pag-upa" for period of (3) years starting January 1, 1975
to December 31, 1977
2.) Unknown to Ramos, title to property was in name of Philippine International Surety Co., Inc., a
corporation founded, organized and 99.5%-owned by the Salgado Sps.
-Later renamed Mindanao Insurance Co., Inc. (MIC) and was placed under receivership and liquidation on
June 20, 1968 in Civil Case of CFI of Rizal, Quezon City, upon application of Insurance Commissioner
Gregoria Cruz- Ansaldo who was appointed receiver.
3.) February 23, 1976- PR, purchased from MIC the Salgado fishpond for P950,000.00
-DAS was signed by the receiver and duly approved by the liquidation court.
4.) Sps. Ortanez refused to accept from Ramos advance rentals on the fishpond
5.) May 1, 1976- Ramos received letter from Don Pablo R. Roman informing him of Roman’s acquisition
of fishpond and intention to take possession on May 16, 1976.
-Ramos’ letter-reply- reminded Roman of his lease contract and refused to consent
6.) PR took over possession of t fishpond.
7.) August 2, 1976- Ramos filed w/ CFI of Manila action for consignation of the sum of P70,000.00
representing advance rentals for fishpond against Resp. w/c he previously tendered to, but refused by
resp.
8.) P. R. Motion to Dismiss on the grounds: a. improper venue, b. no cause of action , c. lack of jurisd.
over the subject.
-in its MD, PR. cited the pendency before CFI of Bataan of Civil Case instituted by P.R. against Ramos on
1976 to quiet its title over the Salgado fishpond.
9.) August 27, 1976- TC dismissed Civil Case against all resp.
-principally, there is already a case pending between the same parties and for
the same cause
-CFI Manila cannot pre-empt the Court of Bataan on w/n PR is already the owner because if it finds that
P. R. is really the owner of fishpond, there is no more lease for which rentals are to be paid
10.) Ramos Cont- Bataan quieting-of-title cannot serve as a bar to his Manila consignation Civil Case
because they involve different issues. Former deals with question of ownership while latter is w/n resp. is
willing to accept the proffered payment.
- Consignation case was filed on August 2, 1976, ahead of Quieting of title which was filed on a much
later date, August 13, 1976, after the Manila CFI had already acquired jurisdiction
Private respondents counter that the view taken by petitioner of the Manila consignation
ISSUE: W/n CFI Manila’s dismissal of Consignation case is proper. Yes, because of litis pendentia
SC:
1.) For litis pendentia to be invoked as a ground for dismissal of action, the concurrence of the following
requisites is necessary: (a) Identity of parties or at least such as represent the same interest in both
actions; (b) Identity of rights asserted and relief prayed for, the relief being founded on the same facts;
and (c) identity in the 2 cases should be such that the judgment that may be rendered in
one would, regardless of which party is successful, amount to res judicata in the other.
-All present here.
2.) 1st element-In Ramos petition for review, one of the assigned errors is that the CFI erred in not
holding that the parties in Civil Cases are not the same parties
-But, in his brief, no further mention of this was made; clear indication of Ramos's admission of the
identity of parties, particularly as he filed a 3rd party complaint in Case for Quieting against Sps. and MIC
3.) 2nd element- Ramos’ consignation case, not as simple. While immediate relief sought for in his
consignation case is to compel therein defendants to accept his advance rentals, the ultimate purpose of
such action is to compel the new owner of the fishpond to recognize his leasehold rights and right of
occupation.
-issue involved in Consignation case is right of possession over fishpond intertwined with the validity and
effectivity of the lease contract w/c is the same issue involved in Quieting case.
-Although an action for quieting of title refers to ownership, P. R.. in its complaint alleged that there is a
cloud on titles of plaintiff on the said agricultural and, on its right of possession over that real property by
reason of a certain "Kasunduan sa Pagupa"
-while TC in the assailed order of dismissal described Quieting case as "precisely for the ownership of
property allegedly leased, its order denying Ramos MR, more perceptively stated that in quieting case,
one of t principal issues is the possession of fishpond.
4.) 3rd element- If Bataan court rule that lease contract is valid and effective against P. R. then Ramos can
compel it to accept his proffered payment of rentals; otherwise, he may not do so.
5.) Ramos contends that dismissal of Consignation case deprived him of his right to choose the venue of
his action.
- the rules on the venue of personal actions are laid down generally for convenience of plaintiff and his
witnesses.
-this right is not absolute. It must yield to the greater interest of the orderly administration of justice,
which as in this case, may call for the dismissal of an action on the basis of litis pendentia to obviate
possibility of conflicting decisions being rendered by two different courts.
6.) Even the Rules of Court has hierarchy of values; thus, the choice of venue may bow to dismissal of the
case because of litis pendentia. At any rate, Ramos cannot complain of any inconvenience arising from
the dismissal of Consignation case. Being the defendant in Quieting case, he cannot but litigate before
the Bataan court, and bringing his consignation case before the same court would actually save him time,
effort and litigation expenses.
7.) Rule on litis pendentia does not require that the later case should yield to the earlier case. What is
required merely is that there be another pending action, not a prior pending action.
8.) Considering the broader scope of inquiry involved in Quieting case and the location of the property
involved, no error was committed by the lower court in defe rring to the Bataan court's jurisdiction.
8. LEE BUN TING vs ALIGAEN &resps
1.) June 27, 1956- SC judgment in "Dinglasan, vs. Lee Bun
- March, 1936- Resp (seller) Lee Liong (buyer) predecessor of Lee Bun., a parcel of land situated Capiz (now
Roxas City)
-after the sale Lee Liong constructed thereon a concrete building for his lumber business and
residence for himself and family.
-Resp contended that sale conditional sale, or one w/ the right of repurchase during last years of a 10 yr.
period, but both TC & CA found that was absolute sale.
-cont. of Resp- sale is null and void-made in violation of the provision contained in Consti (Article XIII, section
5), but CA found that the Lee Liong was not aware of the constitutional prohibition because negotiations for
sale conducted with the knowledge and direct intervention of Judge Dinglasan, who was at that time an
assistant attorney in the Department of Justice.
-SC ruled that granting the sale to be null and void it does not necessarily follow that title remained
in the vendor, who also violated the constitutional prohibition, or that (vendor) has the right to recover title of
which he has divested himself by his act in ignoring the prohibition. It is a bar to equally guilty vendor applying
principle of pari delicto.
- doctrine of in pari delicto bars Lee Bun from recovering title and renders unnecessary the consideration of
the other arguments presented in appellants' brief.
-other cause why Resp. remedy cannot be entertained- prescription of the action. As the sale occurred in
March, 1936, more than (10) years elapsed from the time the cause of action accrued when the action was
filed (1948).
2.) July 1, 1968/ (12) years later, on basis of the decision of SC in Phil. Banking Corporation vs. Lui She, resp.
filed a complaint in CFI Capiz, for recovery of same land subject matter of the 1st mentioned case.
-respondents reiterated contention that sale made to Lee Liong, null and void for being violative of the
Constitution, and be declared as the rightful and legal owners of the property in question
3.) September 23, 1968- Lee Bun filed MD on ground of res judicata,
4.) Opposition of Resp- decision in the prior case "cannot be pleaded in bar of instant action because of new
facts or grounds of recovery and because of change of law or jurisprudence.
5.) Reply to opposition was filed by resp. alleging that the decision in Philippine Banking
promulgated in 1967, "cannot affect the outcome of the instant case. Said 1967 decision cannot be applied,
there had been already a final and conclusive determination some twelve years earlier.
6.) October 10, 1968- before filing reply, TC denied MD.
-SC pointed out that Congress can pass remedial legislation but failed to act. Neither was there any proceeding
after almost 20 years for reversion instituted by the OSG.
-MR by Lee Bun denied on November 9, 1968.
7.) Lee Bun was given (10) days from receipt of the Order to file their answer to the complaint, which
defendants complied with.
"(a) The sale of the parcel of land involved was made in 1935 before the promulgation of the Constitution. "(b)
Said conveyance was an absolute sale, not subject to any right or repurchase
"(c) Upon the purchase of the said parcel of land by the deceased Lee Liong, he and defendant Ang Chia
constructed a camarin"(d) In July 1947, said Lee Liong already deceased, Lee Bun as his legal heirs entered
into an EJS,
-Lee Bun reiterated res judicata, on the
8.) Reply and Answer to the counterclaim were filed by resp.
9.) TC denied a motion filed by petitioners for simplfication of the issues and for the striking out from the
records of the declaration of Dinglasan under the Survivorship Disqualification Rule. A motion for
reconsideration of the foregoing Order was denied on May 7, 1969.
10.) During the pendency of the trial, Resp filed Pet. for the appointment of a receiver to receive, collect and
hold in trust all income of the property in form of monthly rentals on the premise that Lee Bun have no other
visible property which will answer for rentals.
- opposed by Lee Bun alleging that the are solvent,
- TC issued Order appointing respondent Atty. Amosin, as receiver,
11.) Lee Bun herein pray that judgment be rendered annulling and setting aside TC’s Orders and ordering the
dismissal of Civil Case on ground of res judicata.
ISSUE: W/n the questions decided in Dinglasan vs. Lee Bun could still be relitigated in view of the subsequent
decision of SC in Philippine Banking Corporation vs. Lui She. No, res judicata
SC:
1.) Dinglasan case constitutes a bar to present case because latter is a mere relitigation of the same issues
previously adjudged with finality, way back in 1956, between the same parties or their privies and concerning
the same subject matter.
2.) Parties not to be permitted to litigate the same issue more than once; that, when a right or fact has been
juridically tried and determined by a court of competent jurisdiction, or an opportunity for such
trial has been given, the judgment of the court, so long as is remains unreversed, should he conclusive upon
the parties and those in privity with them in law or estate.
3.) Comparison between Dinglasan case and case at bar reveals that requisites for the application of the
doctrine of res judicata are present.
a.) 1st case was tried and decided by court of competent jurisdiction, whose decison was affrmed on appeal by
SC. b.) parties to two cases substantially the same, c.) subject matter are the same, namely, that "parcel of
land; d.) causes of action and reliefs prayed for are identical — the annulment of the sale and the recovery of
the subject parcel of land.
4.) Contrary to contentions of respondents, there’s no change in the facts/conditions of the parties.
5.) Neither ruling in the Philippine Banking case applicable to the case at bar, considering the rule that
posterior changes in the doctrine of this Court cannot retroactively be applied to nullify a prior final ruling in
the same proceeding where the prior adjudication was had, whether the case should he civil or criminal in
nature.
6.) Determination of the questions of fact and of law by SC on Dinglasa case become the law of the case, and
may not now be disputed or relitigated by a reopening of the same questions in a subsequent litigation
between the same parties and their privies over the same subject matter.
-"Law of the case' - opinion delivered on a former appeal. ; whatever is once irrevocably established as the
controlling legal rule of decision between the same parties in the same case continues to be the law of the
case, whether correct on general principles or not, so long as the facts on which such decision was predicated
continue to be the facts of the case before the court.
7.) respondent Judge is directed to issue an Order dismissing Civil Case filed by private respondents.
9. PHILIPPINE NATIONAL BANK, plaintiff-appellants, vs. HERMOGENES HIPOLITO & LEONOR JUNSAY, answer to the complaint but not in a motion for dismissal, for the contradictory allegations would require
defendants-appellees. presentation of evidence
4.) The same is true of the other allegations in the complaint concerning, the demands for payment sent by
1.) June 18, 1959- PNB’s Complaint, filed in CFI Negros Occidental PNB upon Hipolito and the partial payments made by them, all or some of which may have a material bearing
-Hipolito obtained sugar crop loans from PNB through its Victorias Branch, evidenced by promissory notes on the question of prescription.
-of the total amount of P9,692.00 Hipolito paid P3,905.61, leaving a balance of P6,786.39, w/ interest of 5.) In other words, the ground for dismissal not being definite/Indubitable, the lower court should have
- Hipolito refused to pay said amount; deferred determination of the issue until after trial of the case on the merits.
-in view of such demands Hipolito, on May 7, 1957, went to Attorney Francis I. Medel of the legal department The order appealed from is set aside and the case is remanded to the lower court
of PNBs Victorias branch and offered a plan of payment of the account, but for reasons unknown to PNB and
probably due to the transfer of defendant Hipolito as supervising teacher to some other province, his
proposed plan of payment did not materialize; that said offer of plan of payment was an acknowledgment of
defendants' just and valid obligation.
-prayer is for TC to order Hipolito to pay to PNB the amount
2.) Hipolito MBOP, but the motion was denied.
3.) Hipolito MD on ground that PNB’s cause of action,already prescribed.
-To the motion Hipolito attached a joint affidavit of merit, wherein they averred that they never made any
acknowledgment of indebtedness nor offered a plan of payment.
4.)PNB’s opposition- prescriptive period been suspended by "EO. 32, /Moratorium Law," and interrupted,
-Attached to the opposition were (a) a statement of Hipolito’s account PNB letter dated asking Hipolito to
make arrangements for the liquidation of the debt, Hipolito's answer, requesting said Manager, in his personal
and not in his official capacity,
5.) Hipolito Reply to Opposition,- EO32, if at all, suspended the prescriptive period "only for two (2) years, four
(4) months and sixteen (16) days, from March 10, 1945, or only up to July 26, 1948," citing
-alleged written extrajudicial demands constitute self-serving evidence;
- Hipolito's letter can not be considered as an acknowledgment of indebtedness.
6.) CFI Ruling infavor of Hipolito- dismissed Complaint
-since 7 promissory notes constituted one single obligation, date of the last promissory note, June 23, 1941,
should be considered as the true date of the written contract, from which 10 year prescriptive period started; -
- said period was suspended only for (2) years, (4) months and (16) days (by reason of EO 32) until said Order
was declared unconstitutional;
- prescription set in on November 8, 1953, five (5) years, five (5) months and ten (10) days before the
complaint was filed on June 18, 1959
- alleged letters of demand cannot be considered as extrajudicial demands "because there is no proof that
defendants Hipolito received them;
-that PNB's letter of demand of February 4, 1959, which was admittedly received by Hipolito, did not work to
interrupt the prescriptive period which had already previously elapsed;
- Hipolito's answering letter of February 16, 1959 does not contain any express or tacit acknowledgment of the
obligation nor promise to pay the same and hence did not renew the obligation.

ISSUE: W/n the dismissal of complaint by TC is proper. No

SC:
1.) In MD defendant hypothetically admits the truth of the allegations of fact contained in the complaint.
2.) An examination of the complaint herein does not indicate clearly that prescription has set in. On the
contrary, it is belied by the allegation concerning Hipolito 's offer of payment made on May 7, 1957. Such offer
hypothetically admitted in the motion, worked as a renewal of the obligation.
3.) It is true that Hipolito attached to the motion a joint affidavit of merit wherein they deny having made an
offer of a plan of payment. Such denial, however, being a contrary averment of fact, would be proper in the

10. GAUDENCIO GUERRERO vs. JUDGE LUIS B. BELLO, JR., RTC ILOCOS & PEDRO G. HERNANDO
1.) Guerrero filed accion publiciana against Hernando in RTC Ilocos w/c dismissed on ground that parties
being brothers-in-law, complaint should allege that earnest efforts were first exerted towards
compromise.
2.) Complaint not allege that parties exerted earnest efforts towards compromise and that same failed.
3.) But Hernando overlooked this alleged defect since he did not file any motion to dismiss nor attack
complaint on this ground in his answer.
4.) 7 December 1992 at the pre-trial conference- that relationship of Guerrero and respondent Hernando
was noted TC, they being married to half-sisters, hence are brothers-in-law
-Judge gave Guerrero (5) days "to file Motion and amended complaint" to allege that parties were very
close relatives, their respective wives being sisters, and that complaint to be maintained should allege
that earnest efforts towards a compromise were exerted but failed.
- Judge considered this deficiency a jurisdictional defect.
5.) 11 December 1992- Guerrero’s MR the 7 December 1992 Order claiming that since brothers by
affinity are not members of same family, he was not required to exert efforts towards a compromise.
- argued that Hernando was precluded from raising this issue since he did not file motion to dismiss nor
assert the same as an affirmative defense in his answer.
6.) On 22 December- Judge denied the MR holding that failure to allege that earnest efforts towards a
compromise is jurisdictional such that for failure to allege same the court would be deprived of its
jurisdiction to take cognizance of the case.
-Judge warned that unless the complaint was amended within (5) days the case would be dismissed.
7.) On 29 January 1993, 5-day period expired w/o Guerrero amending his complaint, respondent Judge
dismissed the case, declaring the dismissal however to be without prejudice. TC RULING infavor of
Hernando.
ISSUE: W/N the absence of an allegation in the complaint that earnest efforts towards a compromise
between bros. by affinity were exerted, which failed, is a ground for dismissal for lack of jurisdiction. NO
since bros. in law are not contemplated.
SC:
1.) Art. 151. No suit between members of same family shall prosper unless it ppear from the verified
complaint or petition that earnest efforts toward a compromise have been made, but same failed. If
shown that no efforts made, the case be dismissed. This rule not apply to cases which may not be subject
of compromise under the Civil Code.
2.) Negative word "No,"- requirement is mandatory that the complaint or petition, which must be
verified, should allege that earnest efforts towards a compromise have been made but that the same
failed,
3.) Art. 151 is contemplated by Sec. 1, par. (j), Rule 16, of the Rules of Court as ground for a motion to
dismiss
-that the suit is between members of same family and no earnest efforts towards a compromise have
been made.
4.) Rationale- it is difficult to imagine more tragic spectacle than a litigation between members of the
same family; lawsuit between close relatives generates deeper bitterness than between strangers.
5.) But the instant case presents no occasion for application of the above provisions.
6.) Gayon v. Gayon- enumeration of "brothers and sisters" as members of the same family not
comprehend "sisters-in-law."
7.) TC erred in ruling that Guerrero, being brother-in-law of Hernando, was required to exert earnest
efforts towards a compromise before filing the present suit.
8.) In his Comment, Hernando argues that although both wives of parties were not impleaded, it remains
a truism that being spouses of contending parties, and the litigation involves ownership of real property,
the spouses' interest and participation in the land in question cannot be dined, making the suit still a suit
between
-SC found this argument absurd, since Guerrero counters in his Reply that his "wife has no actual interest
and participation in the land which Guerrero bought, according to his complaint, before he married his
wife.
-This factual controversy may be best left to TC to resolve when it resumes hearing the case.
9.) Attempt to compromise and inability to succeed is a condition precedent to the filing of a suit
between members of same family, absence of such allegation in complaint being assailable at any stage
of proceeding, even on appeal, for lack of cause of action.
10.) W/N Hernado is deemed to have waived said defect failing to raise such in MD or Answer. NO. It is
not correct, as Guerrero contends, that Hernando may be deemed to have waived the said defect in
failing to move to dismiss or raise the same in the Answer.
- On the other hand, SC cannot sustain the proposition of Hernando that the case was also dismissed
pursuant to Sec. 3, Rule 17 for failure of Guerrero to comply with court's order to amend his complaint.
-review of the orders not show any directive which Guerrero supposedly defied.
-Order of 7 December 1992 merely gave Guerrero (5) days to file his motion and amended complaint
with reminder that the complaint failed to allege that earnest efforts were exerted towards a
compromise.
-Order of 22 December 1992, which denied Guerrero's MR, simply stated that "Plaintiff (Guerrero) if he
so desire must amend the complaint otherwise, the court will have to dismiss the case
- Order of 29 January 1993 dismissing the case w/o prejudice only made reference to an earlier order
"admonishing" counsel for Guerrero to amend the complaint, and an "admonition" is not synonymous
with "order."
11.) Since the assailed orders not find support in our jurisprudence but, on the other hand, are based on
erroneous interpretation and application of the law, Guerrero could not be bound to comply with them.
12.) TC is directed to continue with Civil Case.