Civpro Rule 17

7/25/2019 Civpro Rule 17

1/15

Civil Procedure | Rule 17| Jan252016 1

G.R. No. L-58986 April 17, 1989

DANTE Y. GO, petitioner,vs.

HON. FERNANDO CRUZ, J!"#, #$%., C&TY 'HER&FF OF CALOOCANC&TY, ()! CAL&FORN&A *ANUFACTUR&NG CO., &NC.,respondents.

De Santos, Balgos & Perez for petitioner.

Francisco N. Carreon, Jr. for respondents.

NAR+A'A,J.:

The dismissal of civil actions is always addressed to the sound judgment and

discretion of the court; this, whether the dismissal is sought after a trial has

been completed or otherwise, 1 or whether it is prayed for by a defendingparty or by a plaintiff or claimant. There is one instance however wherethe dismissal of an action rests exclusively on the will of a plaintiff or

claimant, to prevent which the defending party and even the court itself is

powerless, requiring in fact no action whatever on the part of the court

except the acceptance and recording of the causative document. This is dealt

with in Section 1, ule 1! of the ules of "ourt, which reads as follows#

S$"T%&' 1. Dismissal by the plaintiff

. ( )n action may be

dismissed by the plaintiff without order of court by filing a

notice of dismissal at any time before service of the answer

or of a motion for summary judgment. *nless otherwise

stated in the notice, the dismissal is without prejudice,

except that a notice operates as an adjudication upon the

merits when filed by a plaintiff who has once dismissed in a

competent court an action based on or including the same

claim. ) class suit shall not be dismissed or compromised

without approval of the court.

%t is this provision with which the proceedings at bar are chiefly concerned.

&n &ctober +, 1-1, "alifornia /anufacturing "o., %nc. 0hereinafter, simply,

"alifornia brought an action in the "ourt of 2irst %nstance of /anila against

3ante 4o, accusing him of unfair competition. The graamen of"alifornia5s complaint was that 3ante 4o, doing business under the name

and style of 6Sugarland %nternational 7roducts,6 and engaged li8e "alifornia

in the manufacture of spaghetti, macaroni, and other pasta was selling his

products in the open mar8et under the brand name, 64reat %talian,6 in

pac8ages which were in colorable and deceitful limitation of "alifornia5s

containers bearing its own brand, 6oyal.6 %ts complaint contained anapplication for preliminary injunction commanding 3ante 4o to immediately

cease and desist from the further manufacture, sale and distribution of said

products, and to retrieve those already being offered for sale. 5

)bout two wee8s later, however, or on 'ovember 1+, 1-1, "alifornia filed a

notice of dismissal with the "ourt reading as follows# 6

"&/$S '&9 the plaintiff in the above:entitled case, through

undersigned counsel, and unto this onorable "ourt most

respectfully gives notice of dismissal without prejudice

pursuant to Sec. 1, ule 1! of the ules of "ourt.

9$$2&$, it is respectfully prayed that the above:entitled

case be considered dismissed without prejudice conformably

with Sec. 1, ule 1! of the ules of "ourt.

2our days afterwards, or on 'ovember 1, 1-1, "alifornia received by

registered mail a copy of 3ante 4o5s answer with counterclaim dated

'ovember , 1-1, which had been filed with the "ourt on 'ovember -,

1-1. 7

&n 'ovember 1-, 1-1 a fire bro8e out at the /anila "ity all destroyingamong others the sala of issued an ex parte restraining order

directing 6the defendant ... to immediately cease and desist from the further

manufacture, sale, promotion and distribution of spaghetti, macaroni and


2/15


other pasta products contained in pac8aging boxes and labels under the

name 54$)T %T)@%)',5 which are similar to or copies of those of the

plaintiff, and ... recall ... all his spaghetti, macaroni and other pasta products

using the brand, 54$)T %T)@%)'.56 1/

&n the day following the rendition of the restraining order, 3ante 4o filed the

present petition for certiorari, etc. with this "ourt praying for its nullificationand perpetual inhibition. &n 3ecember 11, 1-1, this "ourt, in turn issued a

writ of preliminary injunction restraining "alifornia,


3/15


G.R. No. L-5989 O%$o0#r 8, 1977

FER*&N JALO+ER, petitioner,vs.

ORFER&O YTOR&AGA, CON'OLAC&ON LOEZ ()! HON. +EN&C&OE'COL&N, i) 2i3 %(p(%i$4 (3 r#3i!i)" J!"#, r()%2 +, Cor$ o Fir3$&)3$()%# o &loilo, respondents.

"orenzo C. Coloso for petitioner.

#mado B. #tol for priate respondents.

CA'TRO, C.J.:t.hqw

This is an original action for certiorari, with prayer for a writ of preliminary

injunction, as8ing this "ourt to declare null and void the &rders dated

)ugust +A, 1-!+ and 'ovember 1=, 1-!+, issued by the respondent


4/15


%ssues having been joined, the case was set for trial. &n September A, 1-?,

private respondents, as plaintiffs, formally offered documentary evidence,

and upon the admission thereof, they rested their case; whereupon,

continuation of trial was ordered transferred until further assignment. Trial

was postponed many times stretching to a period of more than years, until


5/15


%t is uncontroverted that the order of


6/15


G.R. No. L-1788 A"3$ 1, 196

L&GAYA *&NA, JA&*E *&NA, '&L+&NA *&NA, FAU'TA *&NA,ALO *&NA ()! *&GUEL *&NA, $2# i)or3 r#pr#3#)$#! 04 &LARLAZO (3 "(r!i()-(!-li$#,plaintiffs:appellants,vs.

ANTON&A AC'ON, CR&'&NO *ED&NA ()! CRE'ENC&A*&NA,defendants:appellees.

F. #. Pelmoa for plaintiffs-appellants.

Castelo "a) ffice for defendants-appellees.

LARADOR,J.:

This is an appeal from an order of the "ourt of 2irst %nstance of 'ueva $cija,

on. 2elix /a8asiar, presiding, in its "ivil "ase 'o. ?+-, entitled 6@igaya

/ina, et al., plaintiffs vs. "rispino /edina, et al., defendants,6 dismissing the

complaint filed in this case. The appellant also appeals against the order

denying the motion for reconsideration of the order of dismissal.

The facts necessary to understand the nature of the issues presented in this

appeal, as gleaned from the pleadings, may be briefly stated as follows#

7laintiffs @igaya,


7/15


%n the complaint filed in the "ourt of 2irst %nstance of 'ueva $cija in the case

which originated this appeal, it is alleged that plaintiffs are illegitimate

children of the deceased o during

the period from 1-?? to 1-B while ed illegitimate child

of the deceased


8/15


"abanatuan "ity, 3ecember 1, 1-B-.

) motion for the reconsideration of the order of the court dismissing the

action having been denied, the plaintiffs in the present case prosecuted this

appeal directly to this "ourt.+0)ph1+.$2t

)s shown above the question to be resolved is whether or not the orderdismissing the previous "ivil "ase 'o. ?=1B bars the present civil action 'o.

?+- of the "ourt of 2irst %nstance of 'ueva $cija.

%n the first error assigned by the appellants in their brief it is argued that the

dismissal of the complaint in the previous action was in fact 6at the indirect

instance of the plaintiffs through inaction or omission.6 9e do not find this

claim justified by the facts of the case. The order of the court dismissing the

complaint in the first case contains the following warning# 6Should the

plaintiffs fail to comply with this order, this case will be dismissed.6 %n the

face of this express warning given in the court5s order the dismissal can not

be said to have been 6at the indirect instance of the plaintiffs; it was in factcaused by plaintiffs5 refusal to comply with the express mandate contained in

the order of dismissal. The dismissal, therefore, was justified under ule ?=,

Section ? of the ules of "ourt, which reads#

S$". ?.Fail!re to prosec!te. ( 9hen plaintiff fails to appear at the

time of the trial, or to prosecute his action for an unreasonable

length of time, or to comply with these rules of any order of the

court, the action may be dismissed upon motion of the defendant or

upon the court5s own motion. This dismissal shall have the effect of

an adjudication upon the merits, unless otherwise provided by court.

The above provision of the ules was invo8ed in the case, of 3architorena,

et al. s. De los Santos, et al. , 4.. 'o. @:1!=AB, a, 4. . 'o. @:

+?=,


9/15


9$$2&$, the order of dismissal is hereby modified in the sense that the

action for the recognition of the filiation of the plaintiffs should be allowed to

continue against the defendant )ntonia 7acson; but the dismissal of the

action for the annulment of the deeds of sale is affirmed. 9ithout costs.

G.R. No. L-187/7 F#0r(r4 8, 1967


10/15


AGU'T&N O. CA'EA',plaintiff:appellant,vs.

CONCEC&ON 'ANCHEZ +DA. DE RO'ALE' '03$i$$#! 04 2#r 2#ir3:,RO*EO '. RO'ALE', ET AL.,defendants:appellees.

J!an ". Pastrana for plaintiff-appellant.

Francisco 4o. C!pin and 5enceslao B. 4esales for defendants-appellees.

REGALA,J.:

This is an appeal from the order of dismissal entered by the "ourt of 2irst

%nstance of )gusan in "ivil "ase 'o. !=, entitled )gustin "aseGas vs.

"oncepcion Sanche> Dda. de osales, et al.

&n )ugust +1, 1-B+, odolfo )raGas and )gustin &. "aseGas filed with the

"ourt of 2irst %nstance of )gusan, under "ivil "ase 'o. +1, a complaint for

specific performance and enforcement of their alleged right under a certain

deed of sale, and damages against the spouses


11/15


To the above complaint, the defendants filed a motion to dismiss on several

grounds, namely# res /!dicata, prescription, lac8 of cause of action, failure to

include indispensable parties, and that the contract subject of the complaint

was void ab initio. )fter the plaintiff had filed his opposition to the above

motion, the lower court issued the order under appeal dismissing the

complaint. &f the above grounds, though, the lower court relied alone on the

defendants5 plea of res /!dicata, lac8 of cause of action and prescription. Thematerial portion of this order of dismissal reads#

The "ourt, however, believes that this action is barred by prior

judgment. The order of dismissal in "ivil "ase 'o. +1 was already

final and has the effect of an adjudication upon the merits. The

parties in "ivil "ase 'o. +1 and in this case are substantially the

same; the subject matter is the same and there is identity of cause

of action. )ll the elements of res /!dicata are therefore

present.+0)ph1+.$2t

/oreover, the complaint states no cause of action if its purpose is toquiet title, because the plaintiff has as yet no title to the land in

question. 7recisely, this action is brought in order to acquire or

secure title by compelling the defendants to execute a deed of sale

in favor of the plaintiff. owever, this action for specific performance

cannot also prosper because being based upon an agreement in

writing it is already barred by prescription as the period of ten years

has long expired when the present complaint was filed.

The appeal at bar assails the above determination that "ivil "ase 'o. != is

barred by a prior judgment and by prescription and that the same states no

cause of action. %t is on these issues, therefore, that this "ourt shall disposeof this appeal.

9e find for the appellant.

9hen certain of the parties to "ivil "ase 'o. +1 died and due notice thereof

was given to the trial court, it devolved on the said court to order, not the

amendment of the complaint, but the appearance of the legal

representatives of the deceased in accordance with the procedure and

manner outlined in ule ?, Section 1! of the ules of "ourt, which provides#

S$". 1!. Death of Party. ( )fter a party dies and the claim is not

thereby extinguished, the court shall order, upon proper notice, the

legal representative of the deceased to appear and to be substituted

for the deceased, within a period of thirty 0?= days, or within such

time as may be granted. %f the legal representative fails to appear

within said time, the court may order the opposing party to procure

the appointment of a legal representative of the deceased within atime to be specified by the court, and the representative shall

immediately appear for and on behalf of the interest of the

deceased. The court charges involved in procuring such

appointment, if defrayed by the opposing party, may be recovered as

costs. The heirs of the deceased may be allowed to be substituted

for the deceased, without requiring the appointment of an executor

or administrator and the court may appoint guardian ad litem for the

minor heirs.

%n the case of Barrameda s. Barbara, -= 7hil. !1, this court held that an

order to amend the complaint, before the proper substitution of parties asdirected by the aforequoted rule has been effected, is void and imposes

upon the plaintiff no duty to comply therewith to the end that an order

dismissing the said complaint, for such non:compliance, would similarly be

void. %n a subsequent case, Ferriera et al. s. 3onzalez, et al., 4.. 'o. @:

11B!,


12/15


"onsequently, as the dismissal of "ivil "ase 'o. +1 was void, it clearly may

not be asserted to bar the subsequent prosecution of the same or identical

claim.

2inally, 9e find ourselves unable to share the appellees5 view that the

appellant5s complaint under "ivil "ase 'o. != failed to state a sufficient

cause of action. ) cause of action is an act or omission of one party inviolation of the legal right or rights of the other 0/a:ao Sugar "entral vs.

Carrios, !- 7hil. and both these elements were clearly alleged in the

aforesaid complaint.

%nsofar as the issue of prescription is concerned, this "ourt is of the view

that it should defer resolution on it until after "ivil "ase 'o. != shall have

been tried on the merits, considering that one of the defenses set up by the

appellant against the said issue is the existence of a trust relationship over

the property in dispute.

%n view of all the foregoing, the order dated


13/15


resolution inasmuch as the sheriff had not acted on the same. The motion

for reconsideration was denied by the trial court on


14/15


G.R. No. L-1581 F#0r(r4 8, 196

&N THE *ATTER OF THE E'TATE OF CANDELAR&A ENGUAN,!#%#(3#!.'U'ANA AAY DE ARROYO,petitioner:appellant,vs.

FRANC&'CO AAY, CONRADO AAY, JR., JO'E AAY ()! NOR*AAAY,opponents:appellees.

AD&LLA,J.:

&n B


15/15


The issue now hinges on whether or not the petition for the probate of a will

filed in this special proceedings is barred by a previous special proceedings

'o. ?+, the petition of which was dismissed for failure of the petitioner

and his counsel to appear on the date set for the hearing thereof. .

The appellant contends that the dismissal of the petition in the previous case

0spec. proc. 'o. ?+ does not bar the present 0spec. proc. 'o. ??, bothfor the probate of the same last will and testament of the late "andelaria

Cenguan, because the dismissal for failure of the petitioner and his counsel

to appear at the hearing set by the "ourt was not an adjudication on the

merits of the case and is notres /!dicata, because the parties in the

previous and present proceedings are not the same. .

The appellant5s contention that the dismissal of the petition for probate in

the previous special proceedings due to failure of the then petitioner and his

counsel to appear on the date and time set for the hearing thereof is not an

adjudication on the merits must be upheld. %n arriving at this conclusion the

"ourt has not overloo8ed the provisions of sections ? and A, ule ?=, andsection +, ule !?, of the ules of "ourt. The probate of a will may be the

concern of one person or several persons as usually is the case. The fault of

one such person may be imputed to him alone who must suffer the

consequences of his act. Such fault cannot be imputed to other persons.

ence, the failure of 2elix )bay and his counsel to appear on the date and

time set for the hearing of the petition for the probate of a will claimed to

have been executed by the late "andelaria Cenguan during her lifetime

which brought about the dismissal of the petition filed in that special

proceedings 0'o. ?+ cannot prejudice the right of Susana )bay de

)rroyo, the petitioner, in a subsequent petition filed for the probate of the

same will and last testament. So the provisions of the ules cited and

invo8ed by the opponents:appellees cannot be made to apply to proceedings

for the probate of wills, because as already stated other parties interested in

the probate of a will for transmission of property rights to them should not

be prejudiced by the act or fault of another and because it is the policy of

the State to have such last wills and testaments submitted to "ourt for their

probate or legali>ation, as shown or indicated or evidenced by or in the

punishment provided for persons who are in possession of last wills and

testaments of deceased persons and fail or neglect to deliver or present

them to "ourt for probate or to deliver them to the executor named in the

will within twenty days after they 8now of the death of the testators or

within the same period of time after they 8now that they were named

executors of the will 0sections + to B, ule !. The underlying reason for the

rule that a dismissal of an action or complaint in a civil case may be a bar to

a subsequent action unless the dismissal is without prejudice is lac8 of

interest or inaction of the one who brought the action in court by his

complaint and for such lac8 of interest or inaction he should be made to

suffer. .

The order of dismissal appealed from is set aside and the petition for probate

of a will filed in special proceedings 'o. ?? remanded to the "ourt of 2irst

%nstance of 'egros &ccidental for further proceedings as provided for in the

ules of "ourt, without special pronouncement as to costs.

Civpro Rule 17

Documents

Transcript of Civpro Rule 17