33338121-faqs rem-rev -up law center

8/22/2019 33338121-Faqs Rem-rev -Up Law Center

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MOST FREQUENTLY ASKED QUESTIONSSource: U.P. Law Center

EFFECT OF AMENDMENT TO A PLEADING

Ingr an action for reconveyance of a parcel of land filed in the Regional Trial

Court, the defendanDefendant through his lawyer, filed an answer thereinadmitting the averment in the complaint that the land was acquired y the plaintiff

through inheritance from his parents, the former owners thereof.

Susequently, the defendant changed his lawyer and, with leave of court,amended the answer. !n the amended answer, the aovementioned admission no

longer appears" instead, the alleged ownership of the land y the plaintiff was

denied coupled with the allegation that the defendant is the owner of the land forthe reason that he ought the same from the plaintiff#s parents during their

lifetime.

$fter trial, the %egional &rial Court rendered a decision upholding thedefendant#s ownership of the land.

'n appeal, the plaintiff contended that the defendant is ound y theadmission contained in his original answer.

!s the contention of plaintiff correct( )hy(

SUGGESTED ANSWER

NO, ecause pleadings that have een amended disappear from the record,

lose their status as pleadings and cease to e *udicial admissions. )hile they may

nonetheless e utili+ed as against the pleader as etra*udicial admissions, theymust, in order to have such effect, e formally offered in evidence. - Director of Lands vs. Court of Appeals, 196 SCRA 94)

A!TERNATI"E ANSWER

YES, ecause an admission in the original pleading does not cease to e a

*udicial admission simply ecause it was deleted in an amended pleading. &heoriginal answer, although replaced y an amended answer does not cease to e

part of a *udicial record, not having een epunged therefrom. - Dissenting

opinion in Torres vs. Court of Appeals, 11 SCRA !4)

REMEDIES OF A PARTY DECLARED IN DEFAULT

)hat are the availale remedies of party declared in default:./ 0efore the rendition of *udgment" 1

2./ $fter *udgment ut efore its finality" and 21

3./ $fter finality of *udgment( 21

SUGGESTED ANSWER

&he availale remedies of a party declared in default are as follows:

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./ 0efore the rendition of *udgment

-a/ he may file a motion to dismiss under oath to set aside theorder of default on the grounds of fraud, accident, mista;e or

ecusale negligence and that he has a meritorious defense

-Sec. 3 /" and if reconsideration is denied, he mayfile the special civil action of certiorari for grave ause of

discretion tantamount to lac; or ecess of *urisdiction - Sec.

of %ule ?@ /" or -/ he may file a petition for certiorari if he has een illegally

declared in derfault e.g. during the pendency of his motion to

dismiss or efore the epiration of the time to answer. - 6atute

v. C$, 2? SC%$ A?B" $costa'falia v. Sundial, B@ SC%$2/.

2./ $fter *udgment ut efore its finality, he may file a motion for new

trial on the grounds of fraud, accident, mista;e, ecusale negligence or amotion for reconsideration on the ground of ecessive damages,

insufficient evidence or the decision or final order eing contrary to law- Sec. 2 of %ule 3A/" and thereafter, if the motion is denied, appeal

is availale under %ules E or , whichever is applicale.

3./ $fter finality of the *udgment, there are three ways to assail the

*udgment, which are:

-a/ a petition for relied under %ule 3B on the grounds of fraud,

accident, mista;e or ecusale negligence"-/ annulment of *udgment under %ule A for etrinsic fraud or

lac; of *urisdiction"

-c/ certiorari if the *udgment is void on its face or y the *udicialrecord. -0alangcad vs. Fustices of the Court of $ppeals, G.%. o. B3BBB,

8eruary 2,>>2, 2E? SC%$ A /

DEATH OF A PARTY

)hat is the effect of the death of a party upon a pending action(

SUGGESTED ANSWER

)hen the claim in a pending action is purely personal, the death of either

of the parties etinguishes the claim and the action is dismissed. )hen the claimis not purely personal and is not therey etinguished, the party should e

sustituted y his heirs or his eecutor or administrator. -Sec. ? of %ule 3/. !f

the action for recovery of money arising from contract, epress or implied, andthe defendant dies efore the entry of final *udgment in the court in which the

action was pending at the time of such death, it shall not e dismissed ut shall

instead e allowed to continue until entry of final *udgment. $ favorale

*udgment otained y the plaintiff shall e enforced in the manner provided in the

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rules for prosecuting claims against the estate of a deceased person. - Sec. 2E of

%ule 3/

THIRD PARTY CLAIM; WRIT OF INJUNCTION

5nforcing a writ of eecution issued y the Pasig %egional &rial Court in acivil action, the sheriff attached several pieces of machinery and equipment found

in defendant#s place of usiness. $ntonio Sadalay filed with the sheriff an

affidavit of thirdparty claim stating that the attached properties elong to him,not to the defendant.

-a/ Can Sadalay intervene in the case and as; the Pasig %&C to resolve his

thirdparty claim(-/ !f Sadalay decides to file a separate action in the %egional &rial Court

in 6a;ati to vindicate his claim, may he validly otain a writ of in*unction from

the 6a;ati %&C to en*oin the sale in eecution of the levied properties(

SUGGESTED ANSWER

a./ NO, Sadalay may not intervene in the case ecause intervention is

allowed only efore or during the trial of the case. !n this case there is already a

final and eecutory *udgment. -Sec. 2, %ule >" 0ayer Phils. 7s. $gana, ?3SC%$ 3@@/ However, he may as; the Pasig %&C to resolve preliminarily

whether the sheriff acted rightly or wrongly in levying eecution on the properties

in question. -'ng vs. &ating, > SC%$ 2?@/

./ YES, ecause a *udgment rendered in his favor y the 6a;ati court

declaring him to e the owner of the properties levied on would not constitute

interference with the powers or processes of the Pasig Court which renderedthe *udgment to enforce the eecution. !f that is so, an interlocutory order such

as the writ of preliminary in*unction against the sheriff, upon a claim and

prima facie showing of ownership, cannot e considered as such interference.- A"iera vs. CA, 4# SCRA 14$ S% vs. Disca%a, 1&1 SCRA '&)

WRIT OF EXECUTION

Plaintiff sued to recover an unpaid loan and was awarded P333,EEE.EE y

the %&C of 6anila. Defendant did not appeal within the period allowed y law.

He died si days after the lapse of the period to appeal. 8orthwith, a petition forthe settlement of his estate was properly filed with the %&C of Pampanga where

an inventory of all his assets was filed and correspondingly approved. &hereafter,

plaintiff filed a motion for eecution with the 6anila court, contending thereinthat the motion was legally *ustified ecause the defendant died after the *udgment

in the 6anila court had ecome final. %esolve the motion and state your reasons.



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. /Under the same set of facts as -a/, a writ of eecution was issued y the

6anila court upon proper motion three days after the lapse of the period to

appeal. &he corresponding levy on eecution was duly effected ondefendant#s parcel of land worth P???,EEE.EE a day efore the defendant

died. )ould it e proper, on motion, to lift the levy on defendant#s

property( State the reasons for your answer.

SUGGESTED ANSWER

-a/ 6otion for eecution denied.

$lthough the defendant died after the *udgment had ecome final and

eecutory, it cannot e enforced y a writ of eecution against the estate of the

deceased which is in custodia legis. &he *udgment should e filed as a provenmoney claim with the %&C of Pampanga. - (aredes vs. o%a, 61 SCRA #!')

-/ o, since the levy on eecution was duly effected on defendant#s

parcel of land a day efore the defendant died, it was valid. &he land may e soldfor the satisfaction of the *udgment and the surplus shall e accounted for y the

sheriff to the corresponding eecutor or administrator. - Sec. '*c) of Rule 9)

COUNTERCLAIM

I filed an action for damages against & arising from the latter#s tortuous

act. J filed his $nswer with a counterclaim for damages suffered and epenses

incurred on account of I#s suit. &hereafter, I moves to dismiss the case since he

lost interest in the case. J did not o*ect. &he court dismissed the action without pre*udice. J moved the to set the reception of his evidence to prove his

counterclaim. !f you were the *udge, how would you resolve the motion( 5plain.

SUGGESTED ANSWER

! would deny the motion. !nasmuch as J#s counterclaim for damagesincurred on account of I#s suit cannot remain pending for independent

ad*udication, J should have o*ected to the dismissal of the complaint. His

failure to o*ect deprived him of the right to present evidence to prove his

counterclaim. - Sec. ! of Rule 1'$ +notorio v. Lira, 1! SCRA 69 ).

ADJUDICATION OF CASES WITHOUT TRIAL

Can civil and criminal cases e ad*udicated without trial( 5plain

SUGGESTED ANSWERCivil Cases may e ad*udicated without trial, such as in the following

rules:

a./ Summary Fudgment

./ Fudgment on the Pleadings

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c./ Summary Procedure

d./ Sec. 3 of %ule A

Criminal cases as a rule may not e ad*udicated without trial. Some

eceptions are the following:

a./ Plea of guilty ./ 6otion to quash on the ground of doule *eopardy or etinction of

criminal action or liaility

c./ 6otion to dismiss on the ground of violation of the right to aspeedy trial.

PETITION FOR CERTIORARI; WHEN MOTION FOR

RECONSIDERATION NOT NECESSARY

!s the failure to file a motion for reconsideration in the lower court as a

condition precedent for the granting of the writ of certiorari or prohiition always

fatal( 5plain.

SUGGESTED ANSWER

NO, ecause there are eceptions, such as the following:

a./ &he question of *urisdiction was squarely raised efore anddecided y the respondent court

./ Pulic interest is involved

c./ Case of urgency

d./ 'rder is patent nullitye./ !ssue is purely of law

f./ Deprivation of right to due process

EXTRATERRITORIAL SER!ICE OF SUMMONS

)hen is etraterritorial service of summons proper(

SUGGESTED ANSWER

5traterritorial service of summons is proper when the defendant does notreside and is not found in the Philippines and the action affects the personal status

of the plaintiff or relates to, or the su*ect of which is, property within the

Philippines, in which the defendant has or claims a lien or interest, actual orcontingent, or in which the relief demanded consists, wholly or in part, in

ecluding the defendant from any interest therein, or the property of the defendant

has een attached within the Philippines. -Sec. A of %ule / !t is also properwhen the defendant ordinarily resides within the Philippines, ut is temporarily

out of it. - Sec. 1& of Rule 14)

RES JUDICATA

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5velyn filed a complaint for a sum of money against Foan ut the

complaint was later dismissed for failure to prosecute Kwithin a reasonale lengthof time. &hereafter, 5velyn filed another case ased on the same facts against

Foan. Foan moved to dismiss the same on the ground that the cause of action

therein is arred y a prior *udgment -res *udicata/. 5velyn opposed the motionclaiming that re *udicata has not set in since Foan was not served with summons

and the complaint in the first case was earlier dismissed, so that the trial court

never acquired *urisdiction over her person and, consequently, over the case.How would you decide the motion of Foan( 5plain.

SUGGESTD ANSWER

&he motion to dismiss is denied. 'ne of the essential requisites of res *udicata is *urisdiction over the parties. !nasmuch as Foan was not served with the

summons in the first case which was earlier dismissed, the court did not acquire

*urisdiction over her person and, hence, the dismissal was without pre*udice to the

filing of another action against her. -%epulic Planters 0an; vs. 6olina,Septemer 2B, >BB/

LIFE SPAN OF A TEMPORARY RESTRAINING ORDER

)hat is the life span of a temporary restraining order issued y a trialcourt( 6ay this life span e etended( 5plain fully

SUGGESTED ANSWER

&he life span of a restraining order is twenty days. &his life span may not eetended. $ preliminary in*unction may no longer e granted without notice to

the adverse party. However, if it appears that great or irreparale in*ury would

result to the applicant efore his application for preliminary in*unction could eheard on notice, the *udge may issue a temporary restraining order with a limited

life span of twenty days from date of issue. !f no preliminary in*unction is

granted within said period, the temporary restraining order would automaticallyepire on the 2Eth day. !f efore the epiration of the 2Eday period, the

application for preliminary in*unction is denied, the temporary restraining order

would also e deem automatically vacated. -Sec. @ of %ule @B" Dionisio vs. C8!

of South Cotaato, 2 SC%$ 222/

ERROR OF JUDGMENT !S# ERROR OF JURISDICTION

Distinguish etween error of *udgment and error of *urisdiction.

SUGGESTED ANSWER$n error of *udgment is one which the court may commit in the eercise of

its *urisdiction. Such an error does not deprive the court of *urisdiction and is

correctile only y appeal" whereas an error of *urisdiction is one which thcourt

acts without or in ecess of its *urisdiction. Such an error renders an orde

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*udgment void or voidale and is correctile y the special civil action of

certiorari.-De la Cru+ vs. 6oir, 3? Phil. 23" Cochingyan vs. Cloriel, A? SC%$

SETTING ASIDE A FINAL AND EXECUTORY JUDGMENT

6ay a *udgment which has ecome final and eecutory still e questioned,attac;ed or set aside( !f so, how( !f not, why( Discuss fully.

SUGGESTED ANSWER

&here are three ways y which a final and eecutory *udgment may e attac;ed or

set aside, namely:

a./ 0y petition for relief from *udgment under %ule 3B on the groundsof fraud, accident, mista;e or ecusale negligence within sity

days from learning of the *udgment and not more than si months

from its entry#

./ 0y direct to annul or en*oin the enforcement of the *udgment whenthe defect is not apparent on its face or from the recitals contained

in the *udgment"c./ 0y direct action, such as certiorari, or y a collateral attac; against

the *udgment which is void on its face or when the nullity of the

*udgment is apparent y virtue of its own recitals. - M%&%'()*&(+

# P-./+-0 H.-(- %) H.5()* C.6/#, 72 SCRA 32$8

SETTLEMENT OF ESTATE; SELFADJUDICATION; SUMMARY

SETTLEMENT

%ene died intestate, leaving several heirs and sustantial property here in

the Philippines.

./ $ssuming %ene left no dets, as counsel for his heirs, what steps would

you suggest to settle %ene#s estate ! the least epensive manner(2./ $ssuming %ene left only one heir and no dets, as counsel for his lone

heir, what steps would you suggest(

3./ $ssuming that the value of %ene#s estate does not eceed P E,EEE.EE,

what remedy is availale to otain a speedy settlement of his estate(

SUGGESTED ANSWER

/ &o settle %ene#s estate in the least epensive manner, an etra*udicial

settlement of the estate y agreement of the parties should e made

through a pulic instrument to e filed with the %egister of Deeds,together with a ond in an amount equivalent to the value of the personal

property involved as certified under oath y the parties concerned and

conditioned upon payment of any *ust claim that may e filed within two

-2/ years y an heir or other person unduly deprived of participation in the



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estate. &he fact of etra*udicial settlement or administration shall e

pulished in a newspaper of general circulation once a wee; for three -3/

consecutive wee;s. * Sec.1, Rule '4.)

2./ !f %ene left only one heir, then the heir ma ad*udicate to himself the entire

estate y means of an affidavit of selfad*udication to e filed also with theregister of deeds, together with the other requirements aovementioned. -id./

3./ Since the value of %ene#s estate eceed PE,EEE.EE, the remedy is to proceed to underta;e a summary settlement of estates of mall value y

filing a petition in court and upon hearing, which shall eheld not less than

one -/ month nor more that three -3/ months from the date of the last

pulication of a notice which shall e pulished once a wee; for three -3/consecutive wee;s in a newspaper of general circulation in the province

and after such other notice to interested persons as the court may direct.

&he court may proceed summarily without the appointment of an eecutor

or administrator, and without delay, grant, if proper, allowance of the will,if any, to estate, and to apportion and divide among them after payment of

such dets of the estate as the court shall then find to e due. &he order of partition if it involves real estate, shall e recorded y the proper register#s

office. - Sec.!, rule '4).

AMENDMENT !S# SUSTITUTION OF INFORMATION

)ithin the contet of the rule on Criminal Procedure, distinguish an

amendment from a sustitution of an information.

SUGGESTED ANSWER

$n amendment may e made in sustance and form, without leave ofcourt, at any time efore an accused pleads, and thereafter and during the trial as

to all matters of form, y leave and at the discretion of the court, when the same

can e done without pre*udice to the rights of the accused. Sustitution may emade if it appears at any time efore *udgment that a mista;e has een made in

charging the proper offense, in which case, the court shall dismiss the complaint

or information upon filing of a new one charging the proper offense in accordance

with %ule >, Sec. , provided that the accused would not e placed therey indoule *eopardy and may also require the witnesses to give ail for their

appearance at the trial. - Sec. 14, Rule 11$ Tee-anee, /r. vs. ada%ag, !'

SCRA 14 /.

STOP AND FRISK SEARCH

)hat is a &erry search - or so called Kstop and fris; /( !s it *ustified

under eisting law and *urisprudence( 5plain.

SUGGESTED ANSWER

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$ &erry search is a stopandsearch without a warrant. !t is *ustified when

conducted y police officers on the ases of prior confidential information which

were reasonaly corroorated y other attendant matters. - $niag, Fr. vs. Comelec,23A SC%$ 2 /.

DOULE JEOPARDY

George was charged with falsification. 'n the date of initial trial, the

fiscal moved for the postponement on the ground that the case had een assignedto a special prosecutor of the D'F who was out of town to attend to an urgent

case, and who had wires him to request for postponement. &he fiscal manifested

that he was not ready for trial ecause he was unfamiliar with the case. &he *udge

then as;ed the accused as well as his counsel whether they were amenale to a postponement. 0oth George and his counsel insisted on a trial. &he *udge ordered

the case dismissed.

Upon learning thereof, the special prosecutor filed a petition for certiorari

under %ule ?@ of the %ules of Court alleging that the dismissal was capricious anddeprived the government of due process. George opposed the petition invo;ing

doule *eopardy.a./ !s doule *eopardy a ar to the petition( 5plain.

./ Suppose that trial on the merits had in fact proceeded and the trial *udge,

finding the evidence to e insufficient, dismissed the case, would your answer e the same( 5plain.

SUGGESTED ANSWER

a./ NO, ecause this is not an appeal y the prosecution asserting a dismissal

to e erroneous. !t is a petition for certiorari which assails the order of

dismissal as invalid and a nullity ecause it was capricious and deprivedthe Government of due process. Considering that this was the first

motion for postponement of the trial filed y the fiscal and the ground

was meritorious, the *udge gravely aused his discretion in ordering thecase dismissed. I


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$s a general rule, when a criminal case is dismissed on nolle prosequi

efore the accused is placed on trial and efore he is called on to plead, this is not

equivalent to an acquittal and does not ar a susequent prosecution for the sameoffense. * 0alve2 vs. CA, !' SCRA 6 31994 ).

FORMAL OFFER OF E!IDENCE

During the pretrial of a civil case, the partied presented their respective

documentary evidence. $mong the documents mar;ed y the plaintiff was theDeed of $solute Sale of the property in litigation - mar;ed as 5h. KC /.

!n the course of the trial on the merita, 5h. C was identified y the

plaintiff, who was crosseamined thereon y the defendant#s counsel"

furthermore, the contents of 5h.C were read into the records y the plaintiff.However, 5h. C was not among those formally offered in evidence y the

plaintiff.

6ay the trial court consider 5h. C in the determination of the action(

)hy(

SUGGESTED ANSWER

YES, ecause not only was the Deed of $solute Sale mar;ed y the

plaintiff as 5h. C during the pretrial, it was identified y the plaintiff in thecourse of the trial and the plaintiff was crosseamined thereon y the defendant#s

counsel. 8urthermore, the contents of 5h.C were read into the records y the

plaintiff. Hence, the trial court could properly consider 5h.C in the

determination of the action even though it was not formally offered in evidence.&his is an eception to the rule that the court shall consider no evidence which has

not een formally offered. * Sec. # of Rule 1!)

PAST RECOLLECTION RE!I!ED

I states on direct eamination that he once ;now the facts eing as;ed

ut he cannot recall them now. )hen handed a written record of the facts, he

testifies that the facts are correctly stated, ut that he has never seen the writing

efore.!s the writing admissile as past recollection recorded( 5plain.

SUGGESTED ANSWER

', ecause for the written record to e admissile as past recollection

recorded, it must have een written or recorded y I or under his direction at thetime when the fact occurred, or immediately thereafter, or at any other time when

the fact was fresh in his memory and he ;new that the same was correctly written

or recorded. - Sec. ? of %ule 32/ 0ut in this case I has never seen the writing

efore.

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JUDICIAL NOTICE

a./ Give three instances when a Philippine court can ta;e *udicial notice of

a foreign law.

./ How do you prove a written foreign law(c./ Suppose a foreign law was pleaded as part of the defense of defendant

ut no evidence was presented to prove the eistence of said law, what

is the presumption to e ta;en y the court as to the wordings of saidlaw(

SUGGESTED ANSWER

a./ &he three instances when a Philippine court can ta;e *udicial notice of

a foreign law are:

./ )hen the Philippine courts are evidently familiar with the

foreign law2./ )hen the foreign law refers to the law of nations - Sec. of

%ule 2>/3./ )hen it refers to a pulished treatise, periodical or pamphlet

on the su*ect of law if the court ta;es *udicial notice of the

fact that the writer thereof is recogni+ed in his profession orcalling on the su*ect. - Sec. ?, %ule 3E/

./ $ written law may e evidenced y an official pulication thereof of

y a copy attested y the officer having the legal custody of the record,or y his deputy, and accompanied if the record is not ;ept in the

Philippines, with a certificate that such officer has the custody. !f the

office in which the record ids ;ept is in a foreign country, thecertificate may e made y the secretary of the emassy or legation,

consulgeneral, consul, viceconsul, or consular agent or y any officer

in the foreign country in which the record is ;ept, and authenticated ythe seal of his office. - Sec. 2 of %ule 32/

c./ &he presumption is that the wordings of the foreign law are the same

as the local law. &his is referred to as the doctrine of processual

presumption.

HEARSAY RULE

Gerry is eing tried for rape. &he prosecution#s evidence sought to

estalish that at aout >:EEpm of Fanuary 2E, >>, Gerry went to complainant

Fune#s house to invite her to watch the festivities going on at the town pla+a. Funeaccepted the invitation. Upon reaching the pulic mar;et, which was *ust a

stone#s throw away from Fune#s house, Gerry forcily dragged Fune towards the

anana grove ehind the mar;et where he was ale to have carnal ;nowledge with

Fune for aout an hour. Fune did not immediately do home thereafter, and it was



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only in the early morning of the following day that she narrated her ordeal to her

daughter Li+a. Li+a testified in court as to what Fune revealed to her.

a./ !s the testimony of Li+a hearsay(

./ !s it admissile in evidence against the o*ection of the defense(

SUGGESTED ANSWER

a./ J5S, Li+a#s testimony is hearsay. $ witness can testify to those

facts which he ;nows of his personal ;nowledge, that is, which arederived from his own perception ecept as otherwise provided in

the rules - Sec. 3? of %ule 3E/.

./ ', it is not admissile in evidence against the o*ection of the

defense, ecause it is not one of the eceptions to the hearsay rule.!t cannot e considered part of the res gestae ecause only

statements made y a person while a startling occurrence is ta;ing

place or immediately prior or susequent thereto with respect to

the circumstances thereof, may e given in evidence as part of theres gestae. - Sec. 2 of %ule 3E/ She narrated her ordeal to her

daughter only in the morning of the following day, as she did notimmediately go home after the incident which occurred at >:EE pm.

She could have made up the story. She should e placed on the

witness stand, not Li+a whose ;nowledge of the event is hearsay.

$lternative answer:

Li+a#s testimony is admissile in evidence as to the tenor ut not as to the

truth of what Fune revealed to her.

DEAD MAN0S STATUTE

6aimo filed an action against Pedro, the administrator of the estate of

deceased Fuan, for the recovery if a car which is part of the latter#s estate.

During trialm, 6aimo presented witness 6ariano who testified that he was present when 6aimo and Fuan agreed that the latter would pay a rental of

P2E,EEE for the use of 6aimo#s car for one month after which Fuan should

immediately return the car to 6aimo. Pedro o*ected to the admission of

6ariano#s testimony.!f you were the *udge, would you sustain Pedro#s o*ection( )hy(

SUGGESTED ANSWER

NO, the testimony is admissile in evidence ecause witness 6ariano who

testified as to what 6aimo and Fuan, the deceased person, agreed upon, is notdisqualified to testify on the agreement. &hose disqualified are parties to a case,

or persons in whose ehalf a case is prosecuted against the administrator of Fuan#s

estate, upon a claim or demand against his estate as to any matter of fact occurring

efore Fuan#s death. * Sec. ! of Rule 1).

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SUMMARY OF DOCTRINES OF SELECTED CASE S

CI!IL PROCEDURE

!LASON ENTERPRISES CORPORATION # COURT OF APPEALS

G#R# N.# 121$$2$4# J5+? $, 1999#B

!t is wellsettled that an amended pleading supersedes the original one,

which is thus deemed withdrawn and no longer considered part of the record, itdoes not follow ipso facto that the service of a new summons for amended

petitions or complaints is required . 5-ere t-e defendants -ave alread% appeared

"efore t-e trial court "% virtue of a suons on t-e original coplaint, t-e

aended coplaint a% "e served upon t-e it-out need of anot-ersuons, even if ne causes of action are alleged. After it is ac7uired, a

court8s urisdiction continues until t-e case is finall% terinated. Conversel%,

-en defendants -ave not %et appeared in court and no suons -as "een

validl% served, ne suons for t-e aended coplaint ust "e served on

t-e. !t is not the change of cause of action that gives rise to the need to serveanother summons for the amended complaint, ut rather the acquisition of

*urisdiction over the persons of the defendants. !f the trial court has not yet

acquired *urisdiction over them, a new service of summons for the amended

complaint is required.

UNITED HOUSING CORPORATION # DAYRIT, ET AL#

G#R# N.# 7$422# J%)5%6? 22, 199@#B

A udgent upon coproise -ic- is a udgent e"od%ing a

coproise agreeent entered into "% t-e parties in -ic- t-e% ae

reciprocal concessions in order to terinate a litigation alread% instituted is not

appeala"le, is iediatel% e:ecutor% and -as t-e effect of res udicata. $

*udgment rendered upon a compromise agreement, not contrary to law or pulic

policy or pulic order has all the force and effect of any other *udgment, it eing a *udgment on the merits, hence, conclusive upon the parties and their privies. $s

such, it can e enforced y writ of eecution.

A FINANCE CORPORATION # RUFINO CO, ET AL#

G#R# N.# 1@"7"1# J5)- 3@, 1993#B

&he rule is that a compulsory counterclaim cannot Mremain pending for

independent ad*udication y the court.M &his is ecause a compulsory

counterclaim is auiliary to the proceeding in the original suit and merely derives

its *urisdictional support therefrom. T-us, it necessaril% follos t-at if t-e trial



14/92

court no longer possesses urisdiction to entertain t-e ain action of t-e case,

as -en it disisses t-e sae, t-en t-e copulsor% counterclai "eing

ancillar% to t-e principal controvers%, ust lieise "e siilarl% disissed since

no urisdiction reains for t-e grant of an% relief under t-e counterclai.

8or the guidance of 0ench and 0ar, if any of the grounds to dismiss under

Sec. 3, %ule A, of the %ules of Court arises, the proper recourse for a defendantwho desires to pursue his compulsory counterclaim in the same proceeding is not

to move for the dismissal of the complaint" instead, he should only move to have

plaintiff declared nonsuited on the complaint so that the latter can no longer present his evidence thereon, and simultaneously move that he e declared as in

default on the compulsory counterclaim, and reserve the right to present evidence

e parte on his counterclaim. &his will enale defendant who was un*ustly haled

to court to prove his compulsory counterclaim, which is intertwined with thecomplaint, ecause the trial court retains *urisdiction over the complaint and of

the whole case. &he nondismissal of the complaint, the nonsuit notwithstanding,

provides the asis for the compulsory counterclaim to remain active and

susisting.

HEIRS OF FLORENTINA NUGUID !DA# DE HAERER # CA

G#R# N.# L42$99 . L427@9# M%? 2$, 19:1#B

)here a party dies in an action that survives, and no order is issued y the

court for the appearance of the legal representative or of the heirs of the deceased

in sustitution of the deceased, and as a matter of fact no such sustitution has

ever een effected, the trial held y the court without such legal representatives orheirs and the *udgment rendered after such trial are null and void ecause the

court acquired no *urisdiction over the persons of the legal representatives or of

the heirs upon whom the trial and the *udgment would e inding.

TAN # DUMARPA

G#R# N.# 13:777# S-/-'-6 22, 2@@4#B

&he remedies availale to a defendant declared in default are as follows:

-a/ a motion to set aside the order of default under Section 3-/, %ule > of the

%ules of Court, if the default was discovered efore *udgment could e rendered"-2/ a motion for new trial under Section -a/ of %ule 3A, if the default was

discovered after *udgment ut while appeal is still availale" -3/ a petition for

relief under %ule 3B, if *udgment has ecome final and eecutory" and -/ anappeal from the *udgment under Section , %ule , even if no petition to set aside

the order of default has een resorted to.M

GOLDEN FLAME SAWMILL # COURT OF APPEALS

G#R# N.# 11"$44# A/6(+ ", 199"#B

Page 14 of 92


15/92

Prior to pretrial therefore, in particular, efore a party is considered non

suited or declared as in default, it must e shown that such party and his counsel

were each duly served with a separate notice of pretrial. T-e a"sence, t-erefore,of t-e andator% notices of pre;trial nullifies t-e order of default -ic- suffers

fro a serious procedural vice.


16/92

refused on equitale grounds as when there is a change in the situation of the

parties that would ma;e eecution inequitale or when certain circumstances

which transpired after *udgment ecame final render eecution of *udgmentun*ust.

PHILIPPINE NAILS AND WIRES CORPORATIO # MALAYANINSURANCE COMPANY, INC#

G#R# N.# 143933# F-'65%6? 14, 2@@3#B

Under the old %ules, specifically Section 2 of %ule 3> of the pre>>A

%ules of Court, the trial court is granted, upon good reasons, the discretion to

order an eecution even efore the epiration of the time to appeal. T-e present

Rules also grant t-e trial court t-e discretion to order t-e e:ecution of a

udgent or a final order even "efore t-e e:piration of t-e period to appeal,

also upon good reasons stated in a special order after due -earing. Such

discretion, however, is allowed only while the trial court still has M*urisdiction

over the case and is in possession of either the original record, or the record onappeal, as the case may e, at the time of the filing of such motion.M &he mere

filing of a ond y the successful party is not a good reason for orderingeecution pending appeal, as Na comination of circumstances is the dominant

consideration which impels the grant of immediate eecutionnasuc- as a petition for annulent of udgent is

classified as an original action t-at can "e filed "efore t-e Court of Appeals,

t-e said court can adit, "% a% of an aendent to t-e petition, ne causes of

action intiatel% related to t-e resolution of t-e original petition. Hence,

respondent Paramount ecame a necessary party in the petitionerNs original cause

of action see;ing a declaration of the eistence and validity of the ownerNsduplicate copy of the su*ect certificate of title in the possession of the latter, and

an indispensale party in the action for the declaration of nullity of the titles in the

name of respondent Paramount. !ndeed, there can e no complete relief that can e accorded as to those already parties, or for a complete determination or

settlement of the claim su*ect of the action, if we do not touch upon the

necessary consequence of the nullity of the new duplicate copy of the su*ectcertificate of title. &he %ules of Court compels the inclusion of necessary parties

when *urisdiction over the person of the said necessary party can e otained.

oninclusion of a necessary party when there is an opportunity to include him

would mean waiver of the claim against such party.

Page 1$ of 92


17/92

ANDAYA #, AADIA, ET AL#

G#R# N.# 1@4@33# D-=-'-6 27, 1993#B

Furisdiction over su*ect matter is essential in the sense that erroneous

assumption thereof may put at naught whatever proceedings the court might havehad. Hence, even on appeal, and even if the parties do not raise the issue of

*urisdiction, the reviewing court is not precluded from ruling that it has no

*urisdiction over the case. !t is elementary that *urisdiction is vested y law andcannot e conferred or waived y the parties or even y the *udge. !t is also

irrefutale that a court may at any stage of the proceedings dismiss the case for

want of *urisdiction. 8or this matter, the ground of lac; of *urisdiction in

dismissing a case is not waivale. Hence, the last sentence of Sec. 2, %ule >,%ules of Court, epressly states: M)henever it appears that the court has no

*urisdiction over the su*ect matter, it shall dismiss the action.M

OFELIA HERRERAFELIX # CAG#R# N.# 14373$# A5*5 11, 2@@4#B

$ voluntary appearance is a waiver of the necessity of a formal notice. $n

appearance in whatever form, without eplicitly o*ecting to the *urisdiction of

the court over the person, is a sumission to the *urisdiction of the court over the person. )hile the formal method of entering an appearance in a cause pending in

the courts is to deliver to the cler; a written direction ordering him to enter the

appearance of the person who suscries it, an appearance may e made y

simply filing a formal motion, or plea or answer. &his formal method ofappearance is not necessary. He may appear without such formal appearance and

thus sumit himself to the *urisdiction of the court. He may appear y presenting a

motion, for eample, and unless y such appearance he specifically o*ects to the *urisdiction of the court, he therey gives his assent to the *urisdiction of the court

over his person. 5-en t-e appearance is "% otion o"ecting to t-e urisdiction

of t-e court over -is person, it ust "e for t-e sole and separate purpose of

o"ecting to t-e urisdiction of t-e court. >f -is otion is for an% ot-er purpose

t-an to o"ect to t-e urisdiction of t-e court over -is person, -e t-ere"%

su"its -iself to t-e urisdiction of t-e court.

REYNALDO HALIMAO # ATTYS# DANIEL !ILLANUE!A %)

INOCENCIO PEFIANCO FERRER, JR#

A# C%- N.# 3:2"# F-'65%6? 1, 199$#B

'n the other hand, when a motion to dismiss is ased on payment, waiver,

aandonment, release, compromise, or other form of etinguishment, the motionto dismiss does not hypothetically, ut actually, admits the facts alleged in

eistence of the oligation or det, only that plaintiff claims that the oligation

has een satisfied. So that when a motion to dismiss on these grounds is denied,



18/92

what is left to e proven in the trial is no longer the eistence of the det ut the

fact vel non of payment y the defendant.

GARCIA # CA %) SPOUSES UY

G#R# N.# :3929# J5)- 11, 1992#B

$s for private respondentsN -defendantsN/ loss of standing in court, y

reason of having een declared in default, again we rule that a party in default

loses the right to present his defense and eamine or crosseamine witnesses. !tdoes not mean that eing declared in default, and therey losing oneNs standing,

constitutes a waiver of all rights" what is waived only is the right to e heard and

to present evidence during the trial while default prevails. $ party in default is

still entitled to notice of final *udgments and orders and proceedings ta;ensusequent thereto.

PACIFIC ANKING CORPORATION EMPLOYEES ORGANIATION

# CAG#R# N.# 1@9373# M%6=< 2@, 199"#B

5lucidating the crucial distinction etween an ordinary action and a

special proceeding, Chief Fustice 6oran states: $ction is the act y which one

sues another in a court of *ustice for the enforcement or protection of a right, orthe prevention or redress of a wrong while special proceeding is the act y which

one see;s to estalish the status or right of a party, or a particular fact. Hence,

action is distinguished from special proceeding in that the former is a formal

demand of a right y one against another, while the latter is ut a petition for adeclaration of a status, right or fact. )here a party litigant see;s to recover

property from another, his remedy is to file an action. )here his purpose is to

see; the appointment of a guardian for an insane, his remedy is a special proceeding to estalish the fact or status of insanity calling for an appointment of

guardianship.

GARCIA # LLAMAS

G#R# N.# 1"4127# D-=-'-6 :, 2@@3#B

$ summary *udgment is a procedural device designed for the promptdisposition of actions in which the pleadings raise only a legal, not a genuine,

issue regarding any material fact. Consequently, facts are asserted in the

complaint regarding which there is yet no admission, disavowal or qualification"or specific denials or affirmative defenses are set forth in the answer, ut the

issues are fictitious as shown y the pleadings, depositions or admissions. $

summary *udgment may e applied for y either a claimant or a defending party.'n the other hand, under Section of %ule 3 of the %ules of Court, a

*udgment on the pleadings is proper when an answer fails to render an issue or

otherwise admits the material allegations of the adverse partyNs pleading. &he

essential question is whether there are issues generated y the pleadings. 3B $

Page 1: of 92


19/92

*udgment on the pleadings may e sought only y a claimant, who is the party

see;ing to recover upon a claim, counterclaim or crossclaim" or to otain a

declaratory relief.

HEIRS OF RICARDO OLI!AS # HON# FLORENTINO A# FLOR %)

JOSE A# MATAWARANG#R# N.# L7:343# M%? 21, 19::#B

!n the guise of a position paper, private respondent filed a 6otion toDismiss. )hile this is, indeed, a prohiited pleading -Sec. @


20/92

S/.5- GO # TONG

G#R# N.# 1"1942# N.-'-6 27, 2@@3#B

%ule @ of the %ules of Court specifically states that in all cases, the C$Ns

decisions, final orders or resolutions O regardless of the nature of the action or

proceedings involved O may e appealed to this Court through a petition forreview, which is *ust a continuation of the appellate process involving the original

case. @ 'n the other hand, a special civil action under %ule ?@ is an independent

suit ased on the specific grounds provided therein. $s a general rule, certioraricannot e availed of as a sustitute for the lost remedy of an ordinary appeal,

including that under %ule @.

DELGADO # CA

G#R# N.# 137::1# D-=-'-6 21, 2@@4#B

&he principle of res *udicata does not apply when the dismissal of the

earlier complaint, involving the same plaintiffs, same su*ect matter, same theoryand the same defendants, was made without pre*udice to its refiling at a future

date, or in a different venue, as in this case. &he dismissal of the case without pre*udice indicates the asence of a decision on the merits and leaves the parties

free to litigate the matter in a susequent action as though the dismissal action had

not een commenced. >n ot-er ords, t-e discontinuance of a case not on t-e

erits does not "ar anot-er action on t-e sae su"ect atter.

YAO KA SIN TRADING # CA, ET AL#

G#R# N.# "3:2@# J5)- 1", 1992#B

Under Section , %ule 3 of the %ules of Court, only natural or *uridical

persons or entities authori+ed y law may e parties in a civil action. !n FuasingHardware vs. 6endo+a, this Court held that a single proprietorship is neither a

natural person nor a *uridical person under $rticle of the Civil Code" it is not

an entity authori+ed y law to ring suit in court.

SPOUSES ELANIO C# ONG vs. COURT OF APPEALS

G#R# N.# 144":1# J5+? ", 2@@2B

!t ears stressing that the 6&CC cannot admit the elated certification onthe ground that plaintiffs -respondents/ were not anyway guilty of actual forum

shopping. &he distinction etween the prohiition against forum shopping and

the certification requirement should y now e too elementary to emisunderstood. To reiterate, copliance it- t-e certification against forus-opping is separate fro and independent of t-e avoidance of t-e act of foru

s-opping itself. T-ere is a difference in t-e treatent "eteen failure to

copl% it- t-e certification re7uireent and violation of t-e pro-i"ition

against foru s-opping not onl% in ters of iposa"le sanctions "ut also in t-e

anner of enforcing t-e. T-e forer constitutes sufficient cause for t-e

disissal it-out preudice of t-e coplaint or initiator% pleading upon otion

Page 2@ of 92


21/92

and after -earing, -ile t-e latter is a ground for suar% disissal t-ereof

and for direct contept. &he rule epressly requires that a certification against

forum shopping should e attached to or filed simultaneously with the complaintor other initiatory pleading regardless of whether forum shopping had in fact een

committed. $ccordingly, in the instant case, the dismissal of the complaint for

unlawful detainer must follow as a matter of course.

=/=CT=?T CAS=@ ailure of t-e defendants to allege lac of cetification of

non;foru s-opping is not a aiver of t-eir rig-t to assert t-e defect

)hile not raised in the parties# pleadings, it is necessary to mention that the

failure of petitioners# answer filed in the e*ectment case to allege the lac; of

certification of nonforum shopping did not result in the waiver of their right toassert the defect. 'ur decision in ho v. Court of $ppeals where this Court ruled

that y virtue of Sec. , %ule >, #$$% Rule& of Civil 'rocedure, o*ections of this

;ind are forfeited when not raised in the answer4comment earlier tended to a

petition for special civil action of certiorari, is not controlling. T-e instant caseis governed "% t-e 1991 Revised Rules on Suar% (rocedure -ere a otion

to disiss is generall% proscri"ed e:cept for lac of urisdiction over t-e su"ect

atter or failure to copl% it- conciliation proceedings and -ere t-e onl%

atters deeed aived for failure to assert in t-e anser are negative and

affirative defenses.

Clearly, petitioners were ecused from filing a motion to question the

asence of the certification and, concomitantly, their failure to include the

o*ection in their answer did not result in the waiver thereof since the o*ection is

neither a negative nor an affirmative defense. &o clarify, noncompliance withthe requirement of certification does not give rise to an affirmative defense, i.e.,

the allegation of new matter y way of confession and avoidance, much less a

negative defense since the underta;ing has nothing to do with the operative factsrequired to e alleged in an initiatory pleading, such as allegations on the cause of

action, ut with a special prerequisite for admission of the complaint for filing in

court.

GUMAON !S# LARIN

GR N.# 142"23 NO!# 27,2@@18

&hus, the >>A %ules of Civil Procedure now provide that the court may

(otu proprio dismiss the claim when it appears from the pleadings or evidence on

the record that:. the court has no *urisdiction over the su*ect matter"

2. there is another cause of action pending etween the same parties for

the same cause" or 3. where the action is arred y a prior *udgment or y statute of

limitations.

8rom the foregoing, it is clear that a court may not (otu proprio dismiss a

case for improper venue, this ground not eing among those mentioned where the


http://www.supremecourt.gov.ph/jurisprudence/2002/jul2002/..%5Cmar2002%5C115758.htmhttp://www.supremecourt.gov.ph/jurisprudence/2002/jul2002/..%5Cmar2002%5C115758.htmhttp://www.supremecourt.gov.ph/jurisprudence/2002/jul2002/..%5Cmar2002%5C115758.htm


22/92

court is authori+ed to do so.

!n fact, the applicale rule would e Section , %ule > of the >>A %ules of

Civil Procedure providing that Kdefenses and o*ections not pleaded either in amotion to dismiss or in the answer are deemed waived. 8urthermore, Section ?,

%ule ? of the >>A %ules now provides that if no motion to dismiss has een

filed, any of the grounds for dismissal provided in this %ule Q which includes theground that venue is improperly laid -Section


23/92

ASIAN CONSTRUCTION AND DE!ELOPMENT CORP# !S# CA

GR N.# 1$@242, M%? 17,2@@"8

&he purpose of Section , %ule ? of the %ules of Court is to permit a

defendant to assert an independent claim against a thirdparty which he,otherwise, would assert in another action, thus preventing multiplicity of suits.

$ll the rights of the parties concerned would then e ad*udicated in one

proceeding. &his is a rule of procedure and does not create a sustantial right. either does it aridge, enlarge, or nullify the sustantial rights of any litigant.

&his right to file a thirdparty complaint against a thirdparty rests in the

discretion of the trial court. &he thirdparty complaint is actually independent of,

separate and distinct from the plaintiff#s complaint, such that were it not for therule, it would have to e filed separately from the original complaint.

T-e t-ird;part% coplaint does not -ave to s-o it- certaint% t-at

t-ere ill "e recover% against t-e t-ird;part% defendant, and it is sufficient t-at

pleadings s-o possi"ilit% of recover%. >n deterining t-e sufficienc% of t-et-ird;part% coplaint, t-e allegations in t-e original coplaint and t-e t-ird;

part% coplaint ust "e e:ained. A t-ird;part% coplaint ust allege facts

-ic- pria facie s-o t-at t-e defendant is entitled to contri"ution,

indenit%, su"rogation or ot-er relief fro t-e t-ird;part% defendant.

CRIMINAL PROCEDURE

SECRETARY OF JUSTICE vs. HON# RALPH C# LANTION

G#R# N.# 1394$"# J%)5%6? 1:, 2@@@B

!n a preliminary investigation which is an administrative investigatory

proceeding, Section 3, %ule 2 of the %ules of Court guarantees the respondent#s asic due process rights, granting him the right to e furnished a copy of the

complaint, the affidavits, and other supporting documents, and the right to sumit

counteraffidavits and other supporting documents within ten days from receiptthereof. 6oreover, the respondent shall have the right to eamine all other

evidence sumitted y the complainant. R R

&hese twin rights may, however, e considered dispensale in certain instances,

such as:./ !n proceedings where there is an urgent need for immediate action, li;e the

summary aatement of a nuisance per &e -$rticle AE, Civil Code/, the

preventive suspension of a pulic servant facing administrative charges-Section ?3, Local Government Code, 0. P. 0lg. 33A/, the padloc;ing of

filthy restaurants or theaters showing oscene movies or li;e

estalishments which are immediate threats to pulic health and decency,and the cancellation of a passport of a person sought for criminal

prosecution"

2./ )here there is tentativeness of administrative action, that is, where the

respondent is not precluded from en*oying the right to notice and hearing



24/92

at a later time without pre*udice to the person affected, such as the

summary distraint and levy of the property of a delinquent tapayer, and

the replacement of a temporary appointee" and3./ )here the twin rights have previously een offered ut the right to

eercise them had not een claimed.

PEOPLE OF THE PHILIPPINES # MODESTO TEE %#%# ESTOY TEE

G#R# N.# 14@"4$47# J%)5%6? 2@, 2@@3#B

&hus, it has een held that term Mnarcotics paraphernaliaM is not so

wanting in particularity as to create a general warrant. or is the description Many

and all narcoticsM and Mall implements, paraphernalia, articles, papers and records

pertaining toM the use, possession, or sale of narcotics or dangerous drugs so roadas to e unconstitutional. $ search warrant commanding peace officers to sei+e Ma

quantity of loose heroinM has een held sufficiently particular.

&ested against the foregoing precedents, the description Man undetermined

amount of mari*uanaM must e held to satisfy the requirement for particularity in asearch warrant. oteworthy, what is to e sei+ed in the instant case is property of

a specified character, i.e., mari*uana, an illicit drug. 0y reason of its character andthe circumstances under which it would e found, said article is illegal. $ further

description would e unnecessary and ordinarily impossile, ecept as to such

character, the place, and the circumstances. &hus, this Court has held that thedescription Millegally in possession of undetermined quantity4amount of dried

mari*uana leaves and 6ethamphetamine Hydrochloride -Shau/ and sets of

paraphernaliaM particulari+es the things to e sei+ed.

&he search warrant in the present case, given its nearly similar wording,Mundetermined amount of mari*uana or !ndian hemp,M in our view, has satisfied

the ConstitutionNs requirements on particularity of description. &he description

therein is: -/ as specific as the circumstances will ordinarily allow" -2/ epressesa conclusion of fact O not of law O y which the peace officers may e guided

in ma;ing the search and sei+ure" and -3/ limits the things to e sei+ed to those

which ear direct relation to the offense for which the warrant is eing issued.Said warrant imposes a meaningful restriction upon the o*ects to e sei+ed y the

officers serving the warrant. &hus, it prevents eploratory searches, which might

e violative of the 0ill of %ights.

PEOPLE !S# CAILES

2:4 SCRA 199 B

Constitutional procedures on custodial investigation do not apply to a

spontaneous statement, not elicited through questioning y the authorities, ut

given in an ordianry manner wherey the accused orally admitted havingcommitted the crime.

ESQUI!EL # THE SANDIGANAYAN

G#R# N.# 137237, S-/-'-6 17, 2@@2B

Page 24 of 92


25/92

!n Rodrigo, )r* v&* Sandigan+ayan, inay v&* Sandigan+ayan, and !ayu&

v&* Sandigan+ayan, we already held that municipal mayors fall under the originaland eclusive *urisdiction of the Sandiganayan. or can arangay Captain 6ar;

$nthony 5squivel claim that since he is not a municipal mayor, he is outside the

Sandiganayan#s *urisdiction . R.A. '9'#, as aended "% R.A. ?o. &!49, providest-at it is onl% in cases -ere none of t-e accused are occup%ing positionscorresponding to salar% grade E!' or -ig-er t-at e:clusive original

urisdiction s-all "e vested in t-e proper regional trial court, etropolitan trial

court, unicipal trial court, and unicipal circuit court, as t-e case a% "e,

pursuant to t-eir respective urisdictions as provided in Fatas (a"ansa Flg.

1!9, as aended. ote that under the >> Local Government Code, 6ayor

5squivel has a salary grade of 2A. Since arangay Captain 5squivel is the coaccused in Criminal Case o. 2AAA of 6ayor 5squivel, whose position falls

under salary grade 2A, the Sandiganayan committed no grave ause of discretion

in assuming *urisdiction over said criminal case, as well as over Criminal Case

o. 2AAB, involving oth of them.

OFFICE OF THE OMUDSMAN # RUEN ENOC,-#%+

G#R# N.# 14"9"7$:, J%)5%6? 2", 2@@2B

Section @ of %$ ?AAE gives the 'mudsman primary *urisdiction over

cases cogni+ale y the Sandiganayan. &he law defines such primary *urisdictionas authori+ing the 'mudsman Mto ta;e over, at any stage, from any investigatory

agency of the government, the investigation of such cases.M T-e grant of t-is

aut-orit% does not necessaril% ipl% t-e e:clusion fro its urisdiction of cases

involving pu"lic officers and eplo%ees cogni2a"le "% ot-er courts. &he eercise y the 'mudsman of his primary *urisdiction over cases cogni+ale y the

Sandiganayan is not incompatile with the discharge of his duty to investigate

and prosecute other offenses committed y pulic officers and employees. !ndeed,it must e stressed that the powers granted y the legislature to the 'mudsman

are very road and encompass all ;inds of malfeasance, misfeasance and non

feasance committed y pulic officers and employees during their tenure ofoffice.

SALAAR !S# PEOPLE

GR N.# 1"1931, S-/-'-6 23, 2@@3 B

!f demurrer is granted and the accused is acquitted y the court, the

accused has the right to adduce evidence on the civil aspect of the case , unlessthe court also declares that the act or omission from which the civil liaility may

arise did not eist. >f t-e trial court issues an order or renders udgent not

onl% granting t-e deurrer to evidence of t-e accused and ac7uitting -i "ut

also on t-e civil lia"ilit% of t-e accused to t-e private offended part%, said

udgent on t-e civil aspect of t-e case ould "e a nullit% for t-e reason t-at

t-e constitutional rig-t of t-e accused to due process is t-ere"% violated . &his is

so ecause when the accused files a demurrer to evidence, the accused has not yet

%SLope+ 4 %56 %57 8$9s 4 UP L$) C5&5% Page 2" of 92


26/92

adduced evidence oth on the criminal and civil aspects of the case. &he only

evidence on record is the evidence for the prosecution. )hat the trial court should

do is to issue an order or partial *udgment granting the demurrer to evidence andacquitting the accused" and set the case for continuation of trial for the petitioner

to adduce evidence on the civil aspect of the case, and for the private complainant

to adduce evidence y way of reuttal after which the parties may adduce theirsurreuttal evidence as provided for in Section , %ule > of the %evised %ules

of Criminal Procedure.

CASUPANAN !S#LAROYA

GR N.# 14"391, A5*5 2$, 2@@2 B

Under Section of the present %ule , the independent civil action in$rticles 32, 33, 3 and 2A? of the Civil Code is not deemed instituted with the

criminal action ut may e filed separately y the offended party even without

reservation. &he commencement of the criminal action does not suspend the

prosecution of the independent civil action under these articles of the Civil Code.T-e suspension in Section ! of t-e present Rule 111 refers onl% to t-e civil

action arising fro t-e crie, if suc- civil action is reserved or filed "efore t-e

coenceent of t-e criinal action.

GAIONA !S# CA

GR N.# 14@311, M%6=< 3@, 2@@1B

$n amendment which merely states with additional precision something

which is already contained in the original information, and which, therefore, addsnothing essential for conviction for the crime charged is an amendment to form

that can e made at any time. Furisprudence allows amendments to information

so long as: -a/ it does not deprive the accused of the right to invo;e prescription"-/ it does not affect or alter the nature of the offense originally charged" -c/ it

does not involve a change in the asic theory of the prosecution so as to require

the accused to undergo any material change or modification in his defense" -d/ itdoes not epose the accused to a charge which would call for a higher penalty"

and, -@/ it does not cause surprise nor deprive the accused of an opportunity to

meet the new averment.

!n the case at ar, it is clear that the questioned amendment is one of formand not of sustance. T-e allegation of tie -en an offense is coitted is a

atter of for, unless tie is a aterial ingredient of t-e offense. >t is not even

necessar% to state in t-e >nforation t-e precise tie t-e offense as coitted

unless tie is a aterial factor . !t is sufficient that the act is alleged to have een

committed at any time as near to the actual date at which the offense was

committed as the Complaint or !nformation will permit.

LALICAN !S# !ERGARA

GR N.# 1@:$19, J5+? 31, 1997B

Page 2$ of 92


27/92

&his Court has consistently defined the proper procedure in case of denial

of a motion to quash. &he accused has to enter a plea, go to trial without pre*udice

on his part to present the special defenses he had invo;ed in his motion and, ifafter trial on the merits, an adverse decision is rendered, to appeal therefrom in the

manner authori+ed y law. Certiorari is not t-e proper reed% -ere a otion

to 7uas- an inforation is denied. T-at t-e appropriate recourse is to proceedto trial and in case of conviction, to appeal suc- conviction, as ell as t-e

denial of t-e otion to 7uas-, is ipelled "% t-e fact t-at a denial of a otion

to 7uas- is an interlocutor% procedural aspect -ic- cannot "e appealed nor

can it "e t-e su"ect of a petition for certiorari. T-e reedies of appeal and

certiorari are utuall% e:clusive and not alternative or successive.

AYAS !S# SANDIGANAYAN

GR N.# 143$:991, N.-'-6 12,2@@2B

&here is nothing irregular or unlawful in stipulating facts in criminal cases.

&he policy encouraging it is consistent with the doctrine of waiver, whichrecogni+es that M. . . everyone has a right to waive and agree to waive the

advantage of a law or rule made solely for the enefit and protection of theindividual in his private capacity, if it can e dispensed with and relinquished

without infringing on any pulic right and without detriment to the community at

large.M!n the present case, the Foint Stipulation made y the prosecution and

petitioners was a waiver of the right to present evidence on the facts and the

documents freely admitted y them. &here could have een no impairment of

petitionersN right to e presumed innocent, right to due process or right againstselfincrimination ecause the waiver was voluntary, made with the assistance of

counsel and is sanctioned y the %ules on Criminal Procedure. 'nce the

stipulations are reduced into writing and signed y the parties and their counsels,they ecome inding on the parties who made them. &hey ecome *udicial

admissions of the fact or facts stipulated. 5ven if placed at a disadvantageous

position, a party may not e allowed to rescind them unilaterally" it must assumethe consequences of the disadvantage. !f the accused are allowed to plead guilty

under appropriate circumstances, y parity of reasoning, they should li;ewise e

allowed to enter into a fair and true pretrial agreement under appropriate

circumstances.

YAP !S# CA

GR N.# 141"29, J5)- $, 2@@1B

!t militates emphasis that petitioner is see;ing ail on appeal. Section #,

Rule 114 of t-e Revised Rules of Criinal (rocedure is clear t-at alt-oug- t-e

grant of "ail on appeal in non;capital offenses is discretionar%, -en t-e

penalt% iposed on t-e convicted accused e:ceeds si: %ears and circustances

e:ist t-at point to t-e pro"a"ilit% of flig-t if released on "ail, t-en t-e accused

ust "e denied "ail, or -is "ail previousl% granted s-ould "e cancelled. !n the



28/92

same vein, the Court has held that the discretion to etend ail during the course

of the appeal should e eercised with grave caution and for strong reasons,

considering that the accused had een in fact convicted y the trial court .

SALES !S# SANDIGANAYANGR N.# 143:@2, N.-'-6 1$, 2@@1B

&he determination of proale cause is a function of the *udge" it is not forthe provincial fiscal or prosecutor to ascertain. 'nly the *udge and the *udge alone

ma;es this determination" 2.= &he preliminary inquiry made y a prosecutor does

not ind the *udge. !t merely assists him in ma;ing the determination of proale

cause. !t is the report, the affidavits, the transcripts of stenographic notes, if any,and all other supporting documents ehind the prosecutorNs certification which are

material in assisting the *udge in his determination of proale cause" and 3.=

Fudges and prosecutors ali;e should distinguish the preliminary inquiry which

determines proale cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should e

held for trial or e released. 5ven if the two inquiries e made in one and the same proceeding, there should e no confusion aout their o*ectives. T-edeterination of pro"a"le cause for purposes of issuing t-e arrant of arrest is

ade "% t-e udge. T-e preliinar% investigation proper G -et-er or not

t-ere is reasona"le ground to "elieve t-at t-e accused is guilt% of t-e offense

c-arged and, t-erefore, -et-er or not -e s-ould "e su"ected to t-e e:pense,

rigors and e"arrassent of trial G is t-e function of t-e prosecutor.

ROXAS !S, !ASQUE

3": SCRA $3$B

!n criminal prosecutions, a reinvestigation, li;e an appeal, renders the entire case

open for review.

US !S# PURGANAN

GR N.# 14:"71, S-/-'-6 24,2@@2B

&he filing of a petition for etradition does not per se *ustify the issuanceof a warrant of arrest against an etraditee. &he petition, in some instances, may

not contain sufficient allegations and proof on the issue of whether the possile

etraditee will escape from the *urisdiction of the etraditing court. )hen the petition for etradition does not provide sufficient asis for the

arrest of the possile etraditee or the grant of ail as in the case at ar, it is

discretionary for the etradition court to call for a hearing to determine the issue.$n etraditee has the right to apply for ail. &he right is rooted in the due

process clause of the Constitution. !t cannot e denied simply ecause of the

silence of our etradition treaty and law on the matter. &he availaility of the right

Page 2: of 92


29/92

to ail is uttressed y our other treaties recogni+ing civil and political rights and

y international norms, customs and practices.

&he etraditee may apply for ail ut its grant depends on the discretion ofthe etraditing court. &he court must satisfy itself that the ail will not frustrate

the ends of *ustice.

!n deciding whether to grant ail or not to a possile etraditee, theetraditing court must follow a higher and stricter standard. &he etraditee must

prove y clear and convincing evidence that he will not flee from the *urisdiction

of the etraditing court and will respect all its processes. !n fine, that he will notfrustrate the ends of *ustice.

TULIAO !S# RAMOS

2:4 SCRA 37: B

$ *udge should demand the presentation of the originals of the required

documents efore approving a ail ond.

PEOPLE !S#NARCA

GR N.# 1@:4::, J5+? 21, 1997B

&here is nothing in the %ules which renders invalid a preliminary

investigation held without defendantNs counsel. ot eing a part of the due processclause ut a right merely created y law, preliminary investigation if held within

the statutory limitations cannot e voided. $ppellantNs argument, if sustained,

would ma;e a moc;ery of criminal procedure, since all that a party has to do to

thwart the validity of the preliminary investigation is for their counsel not toattend the investigation. !t must e emphasi+ed that the preliminary investigation

is not the venue for the full eercise of the rights of the parties . T-is is -%

preliinar% investigation is not considered as a part of trial "ut erel%

preparator% t-ereto and t-at t-e records t-erein s-all not for part of t-e

records of t-e case in court. (arties a% su"it affidavits "ut -ave no rig-t to

e:aine itnesses t-oug- t-e% can propound 7uestions t-roug- t-e

investigating officer. >n fact, a preliinar% investigation a% even "e conducted

e:;parte in certain cases.

YUSOP !S# SANDIGANAYAN

GR N.# 13::"9$@, F-'65%6? 22, 2@@1B

&he defenseNs failure to crosseamine 5li+aeth %eglos was occasioned y her supervening death. Lac; of crosseamination due to the death of the

witness does not necessarily render the deceasedNs previous testimony epungile.

0esides, mere opportunity and not actual crosseamination is the essence of theright to crosseamine.

)e also find unmeritorious appellantsN argument that 5li+aethNs

testimony, having een ta;en during the ail hearings

d under Section B, %ule , as amended y Circular 2>, Mevidence



30/92

SOLID TRIANGLE SALES CORP# !S# THE SHERIFF OF RTC, QC# E#%+

GR N.# 1443@9, N.-'-6 23, 2@@1B

&he effect of the quashal of the warrant on the ground that no offense has

een committed is to render the evidence otained y virtue of the warrant

Minadmissile for any purpose in any proceeding,M including the preliminaryinvestigation.

DE LOS SANTOSREYES !S# MONTESA

AMRTJ 939:3, A5*5 7, 199"B

>n satisf%ing -iself of t-e e:istence of pro"a"le cause for t-e issuance

of a arrant of arrest, t-e udge, folloing t-e esta"lis-ed doctrine and

procedure, s-all eit-er *a) personall% evaluate t-e report and t-e supporting

docuents su"itted "% t-e prosecutor regarding t-e e:istence of pro"a"le

cause and, on t-e "asis t-ereof, issue a arrant of arrest, or *") if on t-e face of

t-e inforation -e finds no pro"a"le cause, -e a% disregard t-e prosecutor8scertification and re7uire t-e su"ission of t-e supporting affidavits of

itnesses to aid -i in arriving at a conclusion as to t-e e:istence of pro"a"le

cause. -Supreme Court Circular o. 2, dated 3E Fune >BA" Soliven vs.

6a;asiar, ?A SC%$ 3>3 BB=" Cru+ vs. People, 233 SC%$ 3> >=./ &his

procedure is dictated y sound pulic policy" otherwise *udges would e undulyladen with the preliminary eamination and investigation of criminal complaints

instead of concentrating on hearing and deciding cases filed efore their courts.

At t-is stage of a criinal proceeding, t-e udge is not tased to revie in detail

t-e evidence su"itted during t-e preliinar% investigation$ it is sufficient t-at

-e personall% evaluates t-e report and supporting docuents su"itted "% t-e

prosecution in deterining pro"a"le cause. T-is udicial function does not

carr% it- it a otu proprio revie of t-e recoendation of t-e prosecutor in

a capital offense t-at no "ail s-all "e granted. Suc- a recoendation is t-e

e:clusive prerogative of t-e prosecutor in t-e e:ercise of -is 7uasi;udicial

function during t-e preliinar% investigation, -ic- is e:ecutive in nature. !nsuch cases, once the court determines that proale cause eists for the issuance

of a warrant of arrest, the warrant of arrest shall forthwith e issued and it is only

after the accused is ta;en into the custody of the law and deprived of his lierty

that, upon proper application for ail, the court on the asis of the evidenceadduced y the prosecution at the hearing called for the purpose may, upon

determination that such evidence is not strong, admit the accused to ail.

PEOPLE !S# NADERA

GR N.# 1313:4:7, F-'65%6? 2, 2@@@B

Convictions "ased on an iprovident plea of guilt are set aside onl% if

suc- plea is t-e sole "asis of t-e udgent . !f the trial court relied on sufficient

and credile evidence to convict the accused, the conviction must e sustained,

Page 3@ of 92


31/92

ecause then it is predicated not merely on the guilty plea of the accused ut on

evidence proving his commission of the offense charged.

PHIL# RAIT US LINES !S# PEOPLE

GR N.# 1477@3, A/6(+ 4, 2@@4 B

$n appeal from the sentence of the trial court implies a waiver of the

constitutional safeguard against doule *eopardy and throws the whole case open

to a review y the appellate court. &he latter is then called upon to render *udgment as law and *ustice dictate, whether favorale or unfavorale to the

appellant. &his is the ris; involved when the accused decides to appeal a sentence

of conviction. !ndeed, appellate courts have the power to reverse, affirm or

modify the *udgment of the lower court and to increase or reduce the penalty itimposed.

ALONTE !S# SA!ELLANO

2:7 SCRA 24"

$fter the case has een filed in court, any pardon made y the privatecomplainant, whether y sworn statement or on the witness stand, cannot

etinguish criminal lialilty.

PEOPLE !S# ESCANO

349 SCRA $74

&he acquittal on appel of certain accused ased on reasonale dout enefits a coaccused who did not appel or who withdrew his appeal.

PEOPLE !S# MADERAS

3"@ SCRA "@4

)here the accused escapes from actual custody or flees from constructivecustody, the Court may motu proprio or on appellee#s motion dismiss the appeal

for aandonment.

E!IDENCE

PEOPLE OF THE PHILIPPINES vs# E!ANGELINE GANENAS %

URANO

G#R# N.# 1414@@# S-/-'-6 $, 2@@1B

&he alleged inconsistencies in the testimonies of the prosecution witnessesrefer to minor or trivial incidents that do not detract from the fact that appellant

was caught in flagrante delicto as a result of the uyust operation. &he identities

of the leader and the memers of the police team are nonessential matters that

have no direct earing upon the actual commission of the offense. 5itnesses



32/92

testif%ing on t-e sae event do not -ave to "e consistent in ever% detail, as

differences in recollections, viepoints or ipressions are inevita"le. So long as

t-e% concur on t-e aterial points of t-eir respective testionies, slig-t

differences in t-ese atters do not destro% t-e veracit% of t-eir stateents

're&u(ption of Regularity in the 'erfor(ance of -fficial Duty

&he testimonies of the police officers with respect to appellant#s participationin the drugrelated transaction, which was the su*ect of the operation, carried

with it the presumption of regularity in the performance of official functions.

Courts accord credence and full faith to the testimonies of police authorities, asthey are presumed to e performing their duties regularly, asent any convincing

proof to the contrary. !n this case, no sufficient reason or valid eplanation was

presented to deviate from this presumption of regularity on their part.

!n almost every case involving a uyust operation, the accused put upthe defense of frameup. &he Supreme Court views such claim with disfavor,

ecause Kit can easily e feigned and faricated.

E!ANGELINE CARERA # PEOPLE OF THE PHILIPPINES %) LUISGO

G#R# N.# 1"@$1:# J5+? 24, 2@@3#B

!n this case, the prosecution failed to adduce in evidence any notice of

dishonor of the three postdated chec;s or any letter of demand sent to andreceived y the petitioner. &he are testimony of Luis Go that he sent letters of

demand to the petitioner notifying her of the dishonor of her chec;s is utterly

insufficient.

or failure of t-e prosecution to s-o t-at notices of dis-onor of t-e

t-ree postdated c-ecs ere served on t-e petitioner, or at t-e ver% least, t-at

s-e as sent a deand letter notif%ing -er of t-e said dis-onor, t-e pria facie

presuption under Section ! of F.(. Flg. !! t-at s-e ne of t-e insufficienc%

of funds cannot arise. T-us, t-ere can "e no "asis for esta"lis-ing t-e presence

of actual noledge of insufficienc% of funds.M

!n light of such failure, we find and so declare that the prosecution failedto prove eyond reasonale dout all the elements of violation of 0.P. 0lg. 22.

Hence, the need to reverse and set aside the decisions of oth the Court of

$ppeals and the trial court convicting the petitioner of the crime of violation of

0.P. 0lg. 22.However, we uphold the decision of the C$ affirming the trial courtNs

decision ordering the petitioner to pay to the private respondent the total face

value of the chec;s in the amount of P2E>,A@.@. )e stress that a chec; is anevidence of det against the drawer, and although may not e intended to e

presented, has the same effect as an ordinary chec;, and if passed upon to a third

person, will e valid in his hands li;e any other chec;. Hence, the petitioner isoliged to pay to the private respondent Luis Go the said amount of P2E>,A@.@

with 21 legal interest per annum, from the filing of the information until the

finality of this decision, the sum of which, inclusive of interest, shall e su*ect

thereafter to 21 per annum interest until the amount due is fully paid,

Page 32 of 92


33/92

conformaly to our ruling that when an oligation is reached, and it consists in

the payment of a sum of money, i.e. a loan or forearance of money, the interest

due should e that which may have een stipulated in writing. !n the asence ofsuch stipulation, the rate shall e 21 per annum computed from default, i.e.

*udicial or etra*udicial demand. 2@ !n this case, the rate of interest was not

stipulated in writing y the petitioner, the private respondent and 0oni Co. &hus,the applicale interest rate is 21 per annum.

PRESIDENTIAL COMMISSION ON GOOD GO!ERNMENT PCGG8 #

G#R# N.# 13212@# F-'65%6? 1@, 2@@3#B

!n the face of the $ffidavit and the Supplemental $ffidavit, it is indeed

strange how the omudsman could have ruled that there was no testimonialevidence on the said matters. &hat he ruled thus clearly shows that he whimsically

opted to disregard those pieces of evidence and therey demonstrated his

capricious and aritrary eercise of *udgment.

&he complainant is required to file affidavits Mas well as other supportingdocuments to estalish proale cause,M as stated in the %ules of Court:

M-a/ &he complaint shall state the address of the respondent and shall eaccompanied y the affidavits of the complainant and his witnesses, as well as

other supporting documents to estalish proale cause.M

&his requirement was fulfilled y the PCGG. &he SupplementalComplaint was accompanied y the $ffidavits of witnesses as well as y a host of

other supporting documents, all of which O ta;en together O estalished

proale cause.

>t s-ould "e noted t-at t-e Rules on =vidence recogni2es different fors

of evidence G o"ect, docuentar% or testionial G it-out preference for

an% of t-e in particular. 5-at s-ould reall% atter are t-e eig-t and t-e

sufficienc% of t-e evidence presented.

PEOPLE OF THE PHILIPPINES # CARLITO MARAHAY ? MORACA

G#R# N.# 12@$2"29# J%)5%6? 2:, 2@@3B

)hile the fatherdaughter relationship of accusedappellant and the

victims, 6ylene and 0elinda, remains undisputed, the minority of the victims,

though alleged, was not satisfactorily estalished. !t is the urden of the prosecution to prove with certainty the fact that the victim was elow B years of

age when the rape was committed in order to *ustify the imposition of the death

penalty.!n the recent case of People vs. 6anuel Pruna y %amire+ or 5rman Pruna

y %amire+, this Court laid down the following guidelines in appreciating age,

eit-er as an eleent of t-e crie or as a 7ualif%ing circustance@

M. &he est evidence to prove the age of the offended party is an original or

certified true copy of the certificate of live irth of such party.



34/92

M2. !n the asence of a certificate of live irth, similar authentic documents

such as aptismal certificate and school records which show the date of irth of

the victim would suffice to prove age.M3. !f the certificate of live irth or authentic document is shown to have een

lost or destroyed or otherwise unavailale, the testimony, if clear and credile, of

the victimNs mother or a memer of the family either y affinity or consanguinitywho is qualified to testify on matters respecting pedigree such as the eact age or

date of irth of the offended party pursuant to Section E, %ule 3E of the %ules

on 5vidence shall e sufficient under the following circumstances:a. !f the victim is alleged to e elow 3 years of age and what is

sought to e proved is that she is less than A years old"

. !f the victim is alleged to e elow A years of age and what is

sought to e proved is that she is less than 2 years old"c. !f the victim is alleged to e elow 2 years of age and what is

sought to e proved is that she is less than B years old.

M. !n the asence of a certificate of live irth, authentic document, or the

testimony of the victimNs mother or relatives concerning the victimNs age, thecomplainantNs testimony will suffice provided that it is epressly and clearly

admitted y the accused.M@. !t is the prosecution that has the urden of proving the age of the offended

party. &he failure of the accused to o*ect to the testimonial evidence regarding

age shall not e ta;en against him.M?. &he trial court should always ma;e a categorical finding as to the age of

the victim.M

&hus, although the defense does not contest the age of the victim, it is stillessential that the prosecution present independent proof thereof, pursuant to o. @

of said guidelines. $s a matter of fact, the minority of the victim must e proved

with equal certainty and clearness as the crime itself. Under Section , %ule 3Eof the %ules on 5vidence, a irth certificate is the est evidence of a personNs date

of irth. !n the instant case, the prosecution did not present the certificates of live

irth of oth 6ylene and 0elinda or other similar authentic documents to provetheir ages. ot even the victimsN mother or the victims themselves, or any other

relative qualified to testify on matters respecting pedigree, were presented y the

prosecution to estalish the victimsN ages at the time the crimes were committed.

Such failure of the prosecution to discharge its urden constrains this Court tohold that the qualifying circumstance of minority cannot e appreciated in these

cases.

PEOPLE OF THE PHILIPPINES # MARLON MORALDE

G#R# N.# 131:$@# J%)5%6? 1$, 2@@3#B

Having een positively and unmista;aly identified y the complainant as

her rapist, the appellantNs defense of alii cannot prosper. Categorical and

consistent positive identification, a"sent an% s-oing of ill;otive on t-e part of

t-e e%eitness testif%ing t-ereon, prevails over t-e defenses of denial and ali"i

Page 34 of 92


35/92

-ic-, if not su"stantiated "% clear and convincing proof, constitute self;

serving evidence undeserving of eig-t in la. $lii, li;e denial, is inherently

wea; and easily faricated. 8or this defense to *ustify an acquittal, the followingmust e estalished: the presence of the appellant in another place at the time of

the commission of the offense and the physical impossiility for him to e at the

scene of the crime. &hese requisites have not een met.

HEIRS OF LOURDES SAE SAANPAN # ALERTO C#

COMORPOSA

G#R# N.# 1"2:@7# A5*5 12, 2@@3#B

Pleadings filed via fa machines are not considered originals and are at

est eact copies. $s such, they are not admissile in evidence, as there is no wayof determining whether they are genuine or authentic.

&he Certification, on the other hand, is eing contested for earing a

facsimile of the signature of C5% 'fficer Fose 8. &agorda. &he facsimile

referred to is not the same as that which is alluded to in Garvida. &he onementioned here refers to a facsimile signature, which is defined as a signature

produced y mechanical means ut recogni+ed as valid in an;ing, financial, and usiness transactions.

ote that the C5% officer has not disclaimed the Certification. !n fact,

the D5% regional director has ac;nowledged and used it as reference in his'rder dated $pril 2, >>B:

M. . . . C5% 'fficer Fose 8. &agorda, in a NC5%&!8!C$&!'N dated 22

Fuly >>A, certified among others, that: . . . per records availale in his 'ffice, . . .

the controvert

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