THIRD DIVISION

[G.R. No. 121075. July 24, 1997.]

DELTA MOTORS CORPORATION , petitioner, vs . COURT OF APPEALS,

HON. ROBERTO M. LAGMAN and STATE INVESTMENT HOUSE,
INC. ,respondents.

Marcelo P. Villanueva for petitioner

Roco, Bunag, Kapunan & Migallos for private respondent.

SYNOPSIS

In an action for a sum of money against Delta Motors (Civil Case No. 84-23019) filed
by private respondent State Investment House, Inc. (SIHI), Delta was ordered to pay SIHI
P20,061,898.97. The decision could not be served on Delta because it was dissolved
earlier. In the meantime, Delta had been taken over by the Philippine National Bank. SIHI
moved for service of the decision by way of publication. On March 11, 1987, a writ of
execution was issued and pursuant thereto certain properties of Delta were levied upon
and sold.
Delta led a special civil action for certiorari with the Court of Appeals, CA-G.R. SP
No. 23068, insisting that the trial court's decision was void since there was no proper
service of summons, and that being void, the decision never became nal and executory.
The Court of Appeals ruled that the trial court's decision did not become nal and
executory because no copy of the assailed judgment had been properly served on PNB
which assumed Delta's operation. In a motion for reconsideration, Delta insisted that there
was no valid service of summons and the decision of the trial court was not in accordance
with the Rules, hence, void.
Delta led a Notice of Appeal with the RTC in Civil Case No. 84-23019 and prayed
that the records of the case be elevated to the Court of Appeals. The trial court dismissed
the Notice of Appeal, and denied Delta's motion for reconsideration of the dismissal.
Delta led with the Court of Appeals a petition for certiorari, docketed as CA-G.R. SP
No. 29147, where it prayed for the annulment of the trial court's order dismissing the
Notice of Appeal, and for the elevation of the original records of Civil Case No. 84-23019
to the Court of Appeals.
The Court of Appeals issued in CA-G.R. SP No. 29147 a restraining order enjoining
respondents from enforcing the decision, subject of the petition, and ordered the elevation
of the records of the case to it on appeal. Delta led in the Court of Appeals an Omnibus
Motion praying that the March 11, 1987 writ of execution be nulli ed and set aside. In its
resolution of January 5, 1995, the Court of Appeals denied Delta's Omnibus Motion,
holding that the matters prayed for in the Omnibus Motion are matters which were not
raised as issued by petitioner and therefore not within the jurisdiction of the Court of
Appeals to decide.
Delta then led the instant petition, insisting that the matters raised in the Omnibus
Motion were included in the appellate Jurisdiction of the Court of Appeals; hence, it had
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 jurisdiction to rule on the Omnibus Motion.
The Court of Appeals committed no reversible error in denying Delta's Omnibus
Motion. The decision of the Court of Appeals in CA-GR SP No. 29147 had long become
nal insofar as DELTA was concerned. As a matter of fact, at the time Delta led the
petition in CA-GR SP NO. 29147, the orders sought to be declared null and void in the
Omnibus Motion had already been issued they having been so issued at the
commencement of CA-G.R. SP No. 23068. Moreover, the Court of Appeals correctly denied
petitioner's Omnibus Motion in keeping with jurisprudence concerning Section 7 of Rule 51
of the Rules of Court on the Procedure in the Court of Appeals. Clearly then, the Court of
Appeals could only consider errors raised by petitioner in CA-G.R. SP No. 29147, which
were limited to the trial court's orders of 3 June 1992 and 14 September 1992. These
were the only errors Delta argued extensively in its brief. To allow Delta's Omnibus Motion
which it led more than eight months from promulgation of the decision in CA-G.R. SP No.
29147, long after nality of said case, would result in abandonment of sound Judicial
process.
Petition is dismissed.

SYLLABUS

1. REMEDIAL LAW; ACTIONS; JUDGMENT; FINAL DECISIONS, NOT SUBJECT TO

REVIEW. — The decision of the Court of Appeals of 17 June 1993 in CA-G.R. SP No. 29147
had long become nal insofar as DELTA was concerned, and it very well knew that the only
issues raised therein concerned the trial court's orders of 3 June 1992 and 14 September
1992. As a matter of fact, at the time Delta led the petition in CA-G.R. SP No. 29147, the
orders sought to be declared null and void in the Omnibus Motion had already been issued,
they having been so issued at the commencement of CA-G.R. SP No. 23068. In short, if
DELTA intended such orders to be challenged in CA-G.R. SP No. 29147, it could have
explicitly alleged them as sources of additional causes of action and prayed for the
corresponding a rmative relief therefrom, and if this course of action initially proved
unavailing then DELTA could and should have moved for reconsideration on that aspect.
After the nality of the decision in said case, any attempt to introduce or revive the issue
had become procedurally impermissible. Plainly, the issues raised in the Omnibus Motion
could have been allowed during the pendency of said case by way of amendments to the
petition.
2. ID.; COURT OF APPEALS; ISSUES SOUGHT TO BE REVIEWED MUST BE
STATED IN THE ASSIGNMENT OF ERROR; ERRORS NOT ASSIGNED, NOT SUBJECT TO
REVIEW. — The Court of Appeals correctly denied petitioner's Omnibus Motion in keeping
with jurisprudence concerning Section 7 of Rule 51 of the Rules of Court on the Procedure
in the Court of Appeals, which mandates that: Sec. 7. Questions that may be decided. — No
error which does not affect the jurisdiction over the subject matter will be considered
unless stated in the assignment of errors and properly argued in the brief, save as the
court, at its option, may notice plain errors not speci ed, and also clerical errors. Clearly
then, the Court of Appeals could only consider errors raised by petitioner in CA-G.R. SP No.
29147, which were limited to the trial court's orders of 3 June 1992 and 14 September
1992. These were the only errors Delta argued extensively in its brief. To allow DELTA's
Omnibus Motion which it led more than eight months from promulgation of the decision
in CA-G.R. SP No. 29147, or long after nality of said case, would result in abandonment of
sound judicial process.
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 3. ID.; ACTIONS; JUDGMENT; OBITER DICTUM, DEFINED. — An obiter dictum has
been de ned as an opinion expressed by a court upon some question of law which is not
necessary to the decision of the case before it. It is a remark made, or opinion expressed,
by a judge, in his decision upon a cause, "by the way," that is, incidentally or collaterally, and
not directly Upon the question before him, or upon a point not necessarily involved in the
determination of the caused, or introduced by way of illustration, or analogy or argument.
Such are not binding as precedent.
4. ID.; ID.; ID.; OBITER DICTUM; MAY BE DELETED FROM THE DECISION. — The
Court of Appeals likewise did not commit reversible error in deleting the phrase SIHI
protested as obiter dictum. The assailed phrase was indeed obiter dictum as it touched
upon a matter not raised by petitioner expressly in its petition assailing the dismissal of its
notice of appeal. It was not a prerequisite in disposing of the aforementioned issue. The
body of the resolution did not contain any discussion on such matter nor mention any
principle of law to support such statement.

DECISION

DAVIDE , JR. , J : p

This is a Petition for Certiorari 1 under Rule 65 of the Revised Rules of Court seeking
the reversal of the Resolutions of the Court of Appeals in CA-G.R. SP No. 29147 dated 5
January 1995 2 and 14 July 1995. 3 The former denied the Omnibus Motion led by
petitioner Delta Motors Corporation (hereinafter DELTA), while the latter amended the
earlier Resolution.
The pleadings and annexes in the record of CA-G.R. SP No. 29147 disclose the
following materials operative facts:
Private respondent State Investment House, Inc. (hereinafter, SIHI) brought an
action for a sum of money against DELTA in the Regional Trial Court (RTC) of Manila,
Branch VI. The case was docketed as Civil Case No. 84-23019. DELTA was declared in
default, and on 5 December 1984, the RTC, per Judge Ernesto Tengco, rendered a decision
4 the dispositive portion of which reads as follows:

WHEREFORE, in view of the foregoing considerations, judgment is hereby

rendered ordering the defendant to pay unto plaintiff the amount of
P20,061,898.97 as its total outstanding obligation and to pay 25% of the total
obligation as and for attorney's fees, plus cost of suit.

The decision could not be served on DELTA, either personally or by registered mail,
due to its earlier dissolution. However, Delta had been taken over by the Philippine National
Bank (PNB) in the meantime. This notwithstanding, SIHI moved, on 4 November 1986, for
service of the decision by way of publication, which the trial court allowed in its order of 6
December 1986. The decision was published in the Thunderer, a weekly newspaper
published in Manila. After publication, SIHI moved for execution of the judgment, which the
trial court granted in its order of 11 March 1987 on the ground that no appeal had been
taken by DELTA despite publication of the decision. The writ of execution was issued and
pursuant thereto certain properties of DELTA in Iloilo and Bacolod City were levied upon
and sold. The sheriff likewise levied on some other properties of DELTA.
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 DELTA then commenced a special civil action for certiorari with the Court of
Appeals, which was docketed as CA-G.R. SP No. 23068, wherein DELTA insisted that: (a)
the trial court did not acquire jurisdiction over the person of the defendant (DELTA) since
there was no valid/proper service of summons, thus rendering the decision null and void;
and (b) the void decision never became final and executory.
In its decision of 22 January 1991 5 the Court of Appeals ruled against DELTA on the
rst ground, but found that the record before it "is bereft of any showing that a copy of the
assailed judgment had been properly served on P.N.B. which assumed DELTA's operation
upon the latter's dissolution." Accordingly the Court of Appeals ruled that:
[T]he [decision] did not become executory (Vda. de Espiritu v. CFI, L-30486,
Oct. 31, 1972; Tuazon v. Molina, L-55697, Feb. 26, 1981).

It further opined that service by publication did not cure the fatal defect and
thus decreed as follows:
WHEREFORE, while the assailed decision was validly rendered by
respondent court, nonetheless it has not attained finality pending service of copy
thereof on petitioner DELTA, which may appeal therefore within the reglementary
period. 6

In a motion for reconsideration, DELTA insisted that there was no valid service of
summons and the decision of the RTC was not in accordance with the Rules, hence, void. 7
SIHI also led a motion for reconsideration claiming that DELTA was not dissolved, and
even if it were, its corporate personality to receive service of processes subsisted;
moreover, its right to appeal had been lost. 8 These motions were denied by the Court of
Appeals in its resolution of 27 May 1991. 9 Unsatis ed, DELTA led with this Court a
petition for review on certiorari (G.R. No. 100366) which was denied in the resolution of 16
September 1991 for non-compliance with Circular No. 1-88. A motion for reconsideration
was denied in the resolution of 9 October 1991, a copy of which was received by DELTA on
31 October 1991. 1 0
On 12 November 1991, DELTA led a Notice of Appeal 1 1 with the RTC in Civil Case
No. 84-23019, indicating therein that it was appealing from the 5 December 1984 decision,
and prayed as follows:
WHEREFORE, it is most respectfully prayed of this Honorable Court that
this Notice of Appeal be noted and the records of this case be elevated to the
Court of Appeals.

SIHI led on 2 December 1991 a motion to dismiss DELTA's appeal 1 2 on the

ground that it was led out of time, since DELTA obtained a certi ed true copy of the
decision from the RTC on 21 September 1990, hence it had only fteen days therefrom
within which to appeal from the decision. Despite DELTA's opposition, 1 3 the trial court
dismissed the Notice of Appeal. 1 4 DELTA moved to reconsider, 1 5 which SIHI opposed. 1 6
In its order 1 7 of 14 September 1992 the trial court denied Delta's motion.
DELTA then led with the Court of Appeals a petition for certiorari under Rule 65 of
the Rules of Court. The case was docketed as CA-G.R. SP No. 29147. 18 In its petition,
Delta prayed for the: (a) annulment of the order of the trial court dated 3 June 1992
dismissing the Notice of Appeal dated 6 November 1991; (b) annulment of the order of
the trial court dated 14 September 1992 denying the motion for reconsideration of the
former; and (c) elevation of the original records of Civil Case No. 84-23019 to the Court of
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 Appeals. cdasia

On 30 October 1992 the Court of Appeals issued in CA-G.R. SP No. 29147 a

restraining order enjoining respondents and any and all other persons acting on their
behalf "from enforcing or directing the enforcement of the Decision, subject of the
petition." 1 9 Thereafter, in its resolution promulgated on 22 December 1992, 2 0 the Court
of Appeals gave due course to the petition in said case, considered the comments of
private respondents therein as its answer and required the parties to submit their
respective memoranda.
On 17 June 1993 the Court of Appeals promulgated its decision 2 1 in CA-G.R. SP No.
29147, the dispositive portion providing:
WHEREFORE, the questioned order of the respondent court dated June 3,
1992, dismissing the notice of appeal dated November 6, 1991; and the order
dated September 14, 1992 of the same court denying the motion for
reconsideration led by the petitioner, through counsel, are hereby SET ASIDE;
and respondent court hereby ordered to ELEVATE the records of the case to the
Court of Appeals, on appeal.

On 18 January 1993, the RTC elevated the record of Civil Case No. 84-23019 to the
Court of Appeals.
SIHI appealed to this Court from the decision by way of a petition for review. 22 It
contended that DELTA had lost the right to appeal in view of the lapse of more than 15
days from DELTA's receipt of a certi ed true copy of the RTC decision in Civil Case No.
84-23019. This petition for review was docketed as G.R. No. 110677. 23
While SIHI's petition in G.R. No. 110677 was pending before this Court, DELTA led
on 14 February 1994, in CA G.R. SP No. 29147 of the Court of Appeals, an Omnibus Motion
2 4 to:

1) DECLARE AS NULL AND VOID AB INITIO AND WITHOUT ANY FORCE AND
EFFECT THE ORDER OF RESPONDENT COURT DATED MARCH 11, 1987
ORDERING THE ISSUANCE OF THE WRIT OF EXECUTION;
2) DECLARE AS NULL AND VOID AB INITIO AND WITHOUT ANY FORCE AND
EFFECT THE WRIT OF EXECUTION ISSUED PURSUANT TO THE ORDER
DATED MARCH 11, 1987;

3) ALL OTHER PROCEEDINGS HELD, CONDUCTED AND EXECUTED BY

RESPONDENT SHERIFF IMPLEMENTING THE AFORESAID WRIT OF
EXECUTION.

SIHI opposed the motion 25 on grounds that: a) there was a pending appeal by
certiorari with this Court, thus the Court of Appeals was without jurisdiction to entertain
the Omnibus Motion; b) the Omnibus Motion was barred by res judicata; and c) the ling of
the Omnibus Motion was a clear act of forum-shopping and should then be denied
outright.
In its resolution of 7 June 1994, the Court of Appeals merely noted the Omnibus
Motion and stated:
It appearing that there is a pending petition for review with the Supreme
Court of this Court's Decision dated June 17, 1993, it would be improper for this
Court to act on the Omnibus Motion filed by petitioner Delta Motor Corporation . . .
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 26

On 18 July 1994 this Court's Second Division issued a resolution 2 7 in G.R. No.
110677 denying the petition therein for failure to su ciently show that the Court of
Appeals committed reversible error in the questioned judgment. SIHI's motion for
reconsideration was denied in the resolution of this Court of 21 September 1994. 2 8
On 26 October 1994 DELTA led a manifestation and motion 29 to resolve its
Omnibus Motion of February 10, 1994.
In its resolution of 5 January 1995, 3 0 the Court of Appeals denied DELTA's Omnibus
Motion, holding:
[T]he matters prayed for in the Omnibus Motion of petitioner Delta Motor
Corporation dated February 10, 1994 and abovequoted are matters which were
not raised as issues by petitioner in the instant petition and, therefore, not within
the jurisdiction and power of this Court in the instant petition to decide. 3 1

On 27 January 1995 DELTA led a motion for reconsideration and/or clari cation 32
wherein it alleged that: (a) while it was true that the matters prayed for in the Omnibus
Motion of petitioner were not raised in the instant petition, they were, nevertheless,
included in the general prayer in the petition "for such other reliefs and remedies just and
equitable in the premises;" (b) it could not le the Omnibus Motion with the RTC since the
records of Civil Case No. 84-23019 had already been elevated to the Court of Appeals and
upon the perfection of the appeal, the trial court lost jurisdiction over the case; and (c) the
matters raised in the Omnibus Motion were incidental to and included in the appellate
jurisdiction of the Court of Appeals.
On the other hand, on 2 February 1995, SIHI led a motion for clari cation 3 3
wherein it asked for the deletion, for being mere obiter dictum, the following paragraph in
the Resolution of 5 January 1995, to wit:
While it is true that as a necessary consequence the decision of the Court
of Appeals dated January 22, 1991 ruling that the decision in Civil Case No. 84-
23019 "has not attained nality pending service of a copy thereof on petitioner
Delta, which may appeal therefrom within the reglementary period", all
proceedings and/or orders arising from the trial court's decision in Civil Case No.
84-23019 are null and void . . .

SIHI argued that this paragraph was "not necessary to the decision of the case
before it" 3 4 and "cannot be considered binding for the purpose of establishing precedent;"
3 5 likewise, the Resolution itself did not decide the incident on its merits or consider and
dispose of the issues, nor determine the respective rights of the parties concerned.
In its resolution of 14 July 1995, 3 6 the Court of Appeals granted SIHI's motion for
clarification and denied DELTA's motion for reconsideration. As to the latter, it ruled that:
[P]etitioner DELTA is not without remedy, especially considering the ruling
of the Court of Appeals in the rst petition for certiorari (CA-G.R. SP No. 23068)
which ruled thus:

"WHEREFORE, while the assailed decision was validly rendered by the

respondent court, nonetheless it has not attained nality pending service of a
copy thereof on petitioner DELTA, which may appeal therefrom within the
reglementary period."

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 Clearly, the only issue in this petition (CA-G.R. SP No. 29147) is as to the
validity of the questioned orders of respondent court dated June 3, 1992
(dismissing the notice of appeal dated November 6, 1991) and the Order dated
September 14, 1992 of the same court (denying the motion for reconsideration
filed by the petitioner through counsel). 3 7

It then decreed to amend its Resolution of 5 January 1995 by deleting the assailed
paragraph.
DELTA then filed the instant petition, insisting that the matters raised in the Omnibus
Motion were incidental to and included in the appellate jurisdiction of the Court of Appeals;
hence, it had jurisdiction to rule on said motion. As regards the grant of SIHI's motion to
strike out a paragraph in the resolution of 5 January 1995 for being obiter dictum, DELTA
submitted that the latter contained a nding or a rmation of fact, thus could not have
constituted obiter dictum.
After SIHI led its comment, we gave due course to the petition and required the
parties to submit their respective memoranda. DELTA and SIHI did so on 16 April 1996
and on 13 May 1996, respectively.
After a painstaking review of the record in CA-G.R. SP No. 29147, we are more than
convinced that respondent Court of Appeals committed no reversible error in denying
DELTA's Omnibus Motion. The decision of the Court of Appeals of 17 June 1993 in CA-G.R.
SP No. 29147 had long become nal insofar as DELTA was concerned, and it very well
knew that the only issues raised therein concerned the trial court's orders of 3 June 1992
and 14 September 1992. As a matter of fact, at the time Delta led the petition in CA-G.R.
SP No. 29147, the orders sought to be declared null and void in the Omnibus Motion had
already been issued, they having been to issued at the commencement of CA-G.R. SP No.
23068. In short, if DELTA intended such orders to be challenged in CA-G.R. SP No. 29147,
it could have explicitly alleged them as sources of additional causes of action and prayed
for the corresponding a rmative relief therefrom, and if this course of action initially
proved unavailing then DELTA could and should have moved for reconsideration on that
aspect. After the nality of the decision in said case, any attempt to introduce or revive the
issue had become procedurally impermissible. Plainly, the issues raised in the Omnibus
Motion could have been allowed during the pendency of said case by way of amendments
to the petition.
Moreover, the Court of Appeals correctly denied petitioner's Omnibus Motion in
keeping with jurisprudence 3 8 concerning Section 7 of Rule 51 of the Rules of Court on the
Procedure in the Court of Appeals, which mandates that:
Sec. 7. Questions that may be decided. — No error which does not
affect the jurisdiction over the subject matter will be considered unless stated in
the assignment of errors and properly argued in the brief, save as the court, at its
option, may notice plain errors not specified, and also clerical errors.

Clearly then, the Court of Appeals could only consider errors raised by petitioner in
CA-G.R. SP No. 29147, which were limited to the trial court's orders of 3 June 1992 and 14
September 1992. These were the only errors Delta argued extensively in its brief. To allow
DELTA's Omnibus Motion which it led more than eight months from promulgation of the
decision in CA-G.R. SP No. 29147, or long after nality of said case, would result in
abandonment of sound judicial process.
In light of the dispositive portions of the Court of Appeals' decisions of 22 January
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 1991 in CA-G.R. SP No. 23068, and of 17 June 1993 in CA-G.R. SP No. 29147, we cannot
agree with SIHI that DELTA is barred by res judicata. This conclusion is further forti ed by
the unequivocal statements of the Court of Appeals in its challenged resolution of 14 July
1995 that:
[P]etitioner DELTA is not without remedy, especially considering the ruling
of the Court of Appeals in the rst petition for certiorari (CA-G.R. SP No. 23068) . .
.
xxx xxx xxx

Clearly, the only issue in this petition (CA-G.R. SP No. 29147) is as to the
validity of the questioned orders of respondent court dated June 3, 1992
(dismissing the notice of appeal dated November 6, 1991) and the Order dated
September 14, 1992 of the same court (denying the motion for reconsideration
filed by the petitioner through counsel).

The Court of Appeals likewise did not commit reversible error in deleting the phrase
SIHI protested as obiter dictum.
An obiter dictum has been de ned as an opinion expressed by a court upon some
question of law which is not necessary to the decision of the case before it. 39 It is a
remark made, or opinion expressed, by a judge, in his decision upon a cause, "by the way,"
that is, incidentally or collaterally, and not directly upon the question before him, or upon a
point not necessarily involved in the determination of the cause, or introduced by way of
illustration, or analogy or argument. Such are not binding as precedent. 4 0
The assailed phrase was indeed obiter dictum as it touched upon a matter not
raised by petitioner expressly in its petition assailing the dismissal of its notice of appeal.
It was not a prerequisite in disposing of the aforementioned issue. The body of the
resolution did not contain any discussion on such matter nor mention any principle of law
to support such statement.
WHEREFORE, the instant petition is DISMISSED and the challenged resolutions of 5
January 1995 and 14 July 1995 in CA-G.R. SP No. 29147 are AFFIRMED.
Costs against petitioner.
SO ORDERED.
Narvasa, C .J ., Francisco and Panganiban, JJ ., concur.
Melo, J ., took no part; a member of the CA in CA-G.R. 23068. See footnote no. 5.

Footnotes
1. Mistakenly captioned "Petition for Review on Certiorari," Rollo, 9.
2. Original Record (OR) CA-G.R. SP No. 29147, 534-538; Imperial, J. J ., with Buena, A. and
Verzola, E., JJ ., concurring.
3. Id., 570 et seq.; Rollo, 29-33.
4. OR, 269-271.
5. Id., 30-37. Per Martinez, A., J ., with Melo, J.A.R., (now an Associate Justice of this Court),
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 and Victor, L., JJ ., concurring.
6. OR, 36.
7. Id., 38-50.
8. Id., 51-59.
9. Id., 77-78.
10. Decision of 17 June 1993 in CA-G.R. SP No. 29147, 3-4; OR, 225-226.
11. OR, 79-81.
12. OR, 82-84.

13. Id., 85-91.

14. Id., 26-28.
15. Id., 96-110.
16. Id., 111-119.
17. Id., 29.
18. Id., 1-25.
19. Id., 139.
20. Id., 162.
21. OR, 223-230.

22. Id., 242-258.

23. Id., 242-257.
24. Id., 393-397.
25. Id., 410-424.
26. OR, 510.

27. Id., 515.

28. Id., 516-517.
29. Id., 511-514.
30. Id., 534-538.
31. Id., 538.
32. Id., 539-542.
33. OR, 545-548.
34. Citing Auyong Hian v. CTA, 59 SCRA 120 [1974].
35. Citing Tobias v. Diaz, 213 SCRA 253 [1992].

36. Supra, note 2.

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 37. Rollo, 32.
38. Miguel v. Court of Appeals, 29 SCRA 760 [1969]; Bañez v. Court of Appeals, 59 SCRA 15
[1974]; Escaño v. Court of Appeals, 100 SCRA 197 [1980].
39. Auyong Hian v. Court of Tax Appeals, 59 SCRA 110, 120 [1974].
40. BLACK'S LAW DICTIONARY, 967 (5th ed., 1979).

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