G.R. No.

173946               June 19, 2013 The trial court, in an Order dated 8 November 2004, denied
the motion to dismiss for having been filed out of time, citing
Section 1, Rule 16 of the 1997 Rules of Court which states
BOSTON EQUITY RESOURCES, INC., Petitioner,
that: "Within the time for but before filing the answer to the
vs.
complaint or pleading asserting a claim, a motion to dismiss
COURT OF APPEALS AND LOLITA G.
may be made x x x."17 Respondent’s motion for
TOLEDO, Respondents.
reconsideration of the order of denial was likewise denied on
the ground that "defendants’ attack on the jurisdiction of this
DECISION Court is now barred by estoppel by laches" since respondent
failed to raise the issue despite several chances to do so.18
PEREZ, J.:
Aggrieved, respondent filed a petition for certiorari with the
Before the Court is a Petition for Review on Certiorari seeking Court of Appeals alleging that the trial court seriously erred
to reverse and set aside: (1) the Decision, 1 dated 28 February and gravely abused its discretion in denying her motion to
2006 and (2) the Resolution, 2 dated 1 August 2006 of the dismiss despite discovery, during the trial of the case, of
Court of Appeals in CA-G.R. SP No. 88586. The challenged evidence that would constitute a ground for dismissal of the
decision granted herein respondent's petition for certiorari case.19
upon a finding that the trial court committed grave abuse of
discretion in denying respondent's motion to dismiss the The Court of Appeals granted the petition based on the
complaint against her.3 Based on this finding, the Court of following grounds:
Appeals reversed and set aside the Orders, dated 8 November
20044 and 22 December 2004,5 respectively, of the Regional
It is elementary that courts acquire jurisdiction over the
Trial Court (RTC) of Manila, Branch 24.
person of the defendant x x x only when the latter voluntarily
appeared or submitted to the court or by coercive process
The Facts issued by the court to him, x x x. In this case, it is undisputed
that when petitioner Boston filed the complaint on December
On 24 December 1997, petitioner filed a complaint for sum of 24, 1997, defendant Manuel S. Toledo was already dead, x x
money with a prayer for the issuance of a writ of preliminary x. Such being the case, the court a quo could not have
attachment against the spouses Manuel and Lolita acquired jurisdiction over the person of defendant Manuel S.
Toledo.6 Herein respondent filed an Answer dated 19 March Toledo.
1998 but on 7 May 1998, she filed a Motion for Leave to
Admit Amended Answer7 in which she alleged, among others, x x x the court a quo’s denial of respondent’s motion to
that her husband and co-defendant, Manuel Toledo (Manuel), dismiss was based on its finding that respondent’s attack on
is already dead.8 The death certificate9 of Manuel states "13 the jurisdiction of the court was already barred by laches as
July 1995" as the date of death. As a result, petitioner filed a respondent failed to raise the said ground in its [sic] amended
motion, dated 5 August 1999, to require respondent to answer and during the pre-trial, despite her active
disclose the heirs of Manuel.10 In compliance with the verbal participation in the proceedings.
order of the court during the 11 October 1999 hearing of the
case, respondent submitted the required names and
However, x x x it is well-settled that issue on jurisdiction may
addresses of the heirs.11 Petitioner then filed a Motion for
be raised at any stage of the proceeding, even for the first
Substitution,12 dated 18 January 2000, praying that Manuel be
time on appeal. By timely raising the issue on jurisdiction in
substituted by his children as party-defendants. It appears
her motion to dismiss x x x respondent is not estopped from
that this motion was granted by the trial court in an Order
raising the question on jurisdiction.
dated 9 October 2000.13

Moreover, when issue on jurisdiction was raised by

Pre-trial thereafter ensued and on 18 July 2001, the trial
respondent, the court a quo had not yet decided the case,
court issued its pre-trial order containing, among others, the
hence, there is no basis for the court a quo to invoke estoppel
dates of hearing of the case.14
to justify its denial of the motion for reconsideration;

The trial of the case then proceeded. Herein petitioner, as

It should be stressed that when the complaint was filed,
plaintiff, presented its evidence and its exhibits were
defendant Manuel S. Toledo was already dead. The complaint
thereafter admitted.
should have impleaded the estate of Manuel S. Toledo as
defendant, not only the wife, considering that the estate of
On 26 May 2004, the reception of evidence for herein Manuel S. Toledo is an indispensable party, which stands to
respondent was cancelled upon agreement of the parties. On be benefited or be injured in the outcome of the case. x x x
24 September 2004, counsel for herein respondent was given
a period of fifteen days within which to file a demurrer to
xxxx
evidence.15 However, on 7 October 2004, respondent instead
filed a motion to dismiss the complaint, citing the following as
grounds: (1) that the complaint failed to implead an Respondent’s motion to dismiss the complaint should have
indispensable party or a real party in interest; hence, the case been granted by public respondent judge as the same was in
must be dismissed for failure to state a cause of action; (2) order. Considering that the obligation of Manuel S. Toledo is
that the trial court did not acquire jurisdiction over the person solidary with another debtor, x x x, the claim x x x should be
of Manuel pursuant to Section 5, Rule 86 of the Revised Rules filed against the estate of Manuel S. Toledo, in conformity
of Court; (3) that the trial court erred in ordering the with the provision of Section 6, Rule 86 of the Rules of Court,
substitution of the deceased Manuel by his heirs; and (4) that x x x.20
the court must also dismiss the case against Lolita Toledo in
accordance with Section 6, Rule 86 of the Rules of Court.16
The Court of Appeals denied petitioner’s motion for
reconsideration. Hence, this petition.
The Issues More importantly, respondent’s motion to dismiss was filed
after petitioner has completed the presentation of its evidence
in the trial court, giving credence to petitioner’s and the trial
Petitioner claims that the Court of Appeals erred in not
court’s conclusion that the filing of the motion to dismiss was
holding that:
a mere ploy on the part of respondent to delay the prompt
resolution of the case against her.
1. Respondent is already estopped from questioning
the trial court’s jurisdiction;
Also worth mentioning is the fact that respondent’s motion to
dismiss under consideration herein is not the first motion to
2. Petitioner never failed to implead an indispensable dismiss she filed in the trial court. It appears that she had
party as the estate of Manuel is not an indispensable filed an earlier motion to dismiss26 on the sole ground of the
party; unenforceability of petitioner’s claim under the Statute of
Frauds, which motion was denied by the trial court. More
3. The inclusion of Manuel as party-defendant is a telling is the following narration of the trial court in its Order
mere misjoinder of party not warranting the denying respondent’s motion for reconsideration of the denial
dismissal of the case before the lower court; and of her motion to dismiss:

4. Since the estate of Manuel is not an indispensable As can be gleaned from the records, with the admission of
party, it is not necessary that petitioner file its claim plaintiff’s exhibits, reception of defendants’ evidence was set
against the estate of Manuel. on March 31, and April 23, 2004 x x x . On motion of the
defendants, the hearing on March 31, 2004 was cancelled.

In essence, what is at issue here is the correctness of the trial

court’s orders denying respondent’s motion to dismiss. On April 14, 2004, defendants sought the issuance of
subpoena ad testificandum and duces tecum to one Gina M.
Madulid, to appear and testify for the defendants on April 23,
The Ruling of the Court 2004. Reception of defendants’ evidence was again deferred
to May 26, June 2 and June 30, 2004, x x x.
We find merit in the petition.
On May 13, 2004, defendants sought again the issuance of a
Motion to dismiss filed out of time subpoena duces tecum and ad testificandum to the said Gina
Madulid. On May 26, 2004, reception of defendants [sic]
evidence was cancelled upon the agreement of the parties.
To begin with, the Court of Appeals erred in granting the writ On July 28, 2004, in the absence of defendants’ witness,
of certiorari in favor of respondent. Well settled is the rule hearing was reset to September 24 and October 8, 2004 x x
that the special civil action for certiorari is not the proper x.
remedy to assail the denial by the trial court of a motion to
dismiss. The order of the trial court denying a motion to
dismiss is merely interlocutory, as it neither terminates nor On September 24, 2004, counsel for defendants was given a
finally disposes of a case and still leaves something to be period of fifteen (15) days to file a demurrer to evidence. On
done by the court before a case is finally decided on the October 7, 2004, defendants filed instead a Motion to Dismiss
merits.21 Therefore, "the proper remedy in such a case is to x x x.27
appeal after a decision has been rendered."22
Respondent’s act of filing multiple motions, such as the first
As the Supreme Court held in Indiana Aerospace University v. and earlier motion to dismiss and then the motion to dismiss
Comm. on Higher Education:23 at issue here, as well as several motions for postponement,
lends credibility to the position taken by petitioner, which is
shared by the trial court, that respondent is
A writ of certiorari is not intended to correct every
controversial interlocutory ruling; it is resorted only to correct
a grave abuse of discretion or a whimsical exercise of deliberately impeding the early disposition of this case. The
judgment equivalent to lack of jurisdiction. Its function is filing of the second motion to dismiss was, therefore, "not
limited to keeping an inferior court within its jurisdiction and only improper but also dilatory."28 Thus, the trial court, "far
to relieve persons from arbitrary acts – acts which courts or from deviating or straying off course from established
judges have no power or authority in law to perform. It is not jurisprudence on the matter, x x x had in fact faithfully
designed to correct erroneous findings and conclusions made observed the law and legal precedents in this case."29 The
by the courts. (Emphasis supplied) Court of Appeals, therefore, erred not only in entertaining
respondent’s petition for certiorari, it likewise erred in ruling
that the trial court committed grave abuse of discretion when
Even assuming that certiorari is the proper remedy, the trial it denied respondent’s motion to dismiss.
court did not commit grave abuse of discretion in denying
respondent’s motion to dismiss. It, in fact, acted correctly
when it issued the questioned orders as respondent’s motion On whether or not respondent is estopped from
to dismiss was filed SIX YEARS AND FIVE MONTHS AFTER questioning the jurisdiction of the trial court
SHE FILED HER AMENDED ANSWER. This circumstance alone
already warranted the outright dismissal of the motion for
having been filed in clear contravention of the express
mandate of Section 1, Rule 16, of the Revised Rules of Court.
Under this provision, a motion to dismiss shall be filed within
the time for but before the filing of an answer to the
complaint or pleading asserting a claim.24
At the outset, it must be here stated that, as the succeeding Here, what respondent was questioning in her motion to
discussions will demonstrate, jurisdiction over the person of dismiss before the trial court was that court’s jurisdiction over
Manuel should not be an issue in this case. A protracted the person of defendant Manuel. Thus, the principle of
discourse on jurisdiction is, nevertheless, demanded by the estoppel by laches finds no application in this case. Instead,
fact that jurisdiction has been raised as an issue from the the principles relating to jurisdiction over the person of the
lower court, to the Court of Appeals and, finally, before this parties are pertinent herein.
Court. For the sake of clarity, and in order to finally settle the
controversy and fully dispose of all the issues in this case, it
The Rules of Court provide:
was deemed imperative to resolve the issue of jurisdiction.

RULE 9
1. Aspects of Jurisdiction
EFFECT OF FAILURE TO PLEAD

Petitioner calls attention to the fact that respondent’s motion

Section 1. Defenses and objections not pleaded. – Defenses
to dismiss questioning the trial court’s jurisdiction was filed
and objections not pleaded either in a motion to dismiss or in
more than six years after her amended answer was filed.
the answer are deemed waived. However, when it appears
According to petitioner, respondent had several opportunities,
from the pleadings or the evidence on record that the court
at various stages of the proceedings, to assail the trial court’s
has no jurisdiction over the subject matter, that there is
jurisdiction but never did so for six straight years. Citing the
another action pending between the same parties for the
doctrine laid down in the case of Tijam, et al. v. Sibonghanoy,
same cause, or that the action is barred by a prior judgment
et al.30 petitioner claimed that respondent’s failure to raise the
or by statute of limitations, the court shall dismiss the claim.
question of jurisdiction at an earlier stage bars her from later
questioning it, especially since she actively participated in the
proceedings conducted by the trial court. RULE 15
MOTIONS
Petitioner’s argument is misplaced, in that, it failed to
consider that the concept of jurisdiction has several aspects, Sec. 8. Omnibus motion. – Subject to the provisions of
namely: (1) jurisdiction over the subject matter; (2) Section 1 of Rule 9, a motion attacking a pleading, order,
jurisdiction over the parties; (3) jurisdiction over the issues of judgment, or proceeding shall include all objections then
the case; and (4) in cases involving property, jurisdiction over available, and all objections not so included shall be deemed
the res or the thing which is the subject of the litigation.31 waived.

The aspect of jurisdiction which may be barred from being Based on the foregoing provisions, the "objection on
assailed as a result of estoppel by laches is jurisdiction over jurisdictional grounds which is not waived even if not alleged
the subject matter. Thus, in Tijam, the case relied upon by in a motion to dismiss or the answer is lack of jurisdiction
petitioner, the issue involved was the authority of the then over the subject matter. x x x Lack of jurisdiction over the
Court of First Instance to hear a case for the collection of a subject matter can always be raised anytime, even for the
sum of money in the amount of ₱1,908.00 which amount was, first time on appeal, since jurisdictional issues cannot be
at that time, within the exclusive original jurisdiction of the waived x x x subject, however, to the principle of estoppel by
municipal courts. laches."36

In subsequent cases citing the ruling of the Court in Tijam, Since the defense of lack of jurisdiction over the person of a
what was likewise at issue was the jurisdiction of the trial party to a case is not one of those defenses which are not
court over the subject matter of the case. Accordingly, in deemed waived under Section 1 of Rule 9, such defense must
Spouses Gonzaga v. Court of Appeals,32 the issue for be invoked when an answer or a motion to dismiss is filed in
consideration was the authority of the regional trial court to order to prevent a waiver of the defense.37 If the objection is
hear and decide an action for reformation of contract and not raised either in a motion to dismiss or in the answer, the
damages involving a subdivision lot, it being argued therein objection to the jurisdiction over the person of the plaintiff or
that jurisdiction is vested in the Housing and Land Use the defendant is deemed waived by virtue of the first
Regulatory Board pursuant to PD 957 (The Subdivision and sentence of the above-quoted Section 1 of Rule 9 of the Rules
Condominium Buyers Protective Decree). In Lee v. Presiding of Court.38
Judge, MTC, Legaspi City,33 petitioners argued that the
respondent municipal trial court had no jurisdiction over the The Court of Appeals, therefore, erred when it made a
complaint for ejectment because the issue of ownership was sweeping pronouncement in its questioned decision, stating
raised in the pleadings. Finally, in People v. that "issue on jurisdiction may be raised at any stage of the
Casuga,34 accused-appellant claimed that the crime of grave proceeding, even for the first time on appeal" and that,
slander, of which she was charged, falls within the concurrent therefore, respondent timely raised the issue in her motion to
jurisdiction of municipal courts or city courts and the then dismiss and is, consequently, not estopped from raising the
courts of first instance, and that the judgment of the court of question of jurisdiction. As the question of jurisdiction
first instance, to which she had appealed the municipal court's involved here is that over the person of the defendant
conviction, should be deemed null and void for want of Manuel, the same is deemed waived if not raised in the
jurisdiction as her appeal should have been filed with the answer or a motion to dismiss. In any case, respondent
Court of Appeals or the Supreme Court. cannot claim the defense since "lack of jurisdiction over the
person, being subject to waiver, is a personal defense which
In all of these cases, the Supreme Court barred the attack on can only be asserted by the party who can thereby waive it by
the jurisdiction of the respective courts concerned over the silence."39
subject matter of the case based on estoppel by laches,
declaring that parties cannot be allowed to belatedly adopt an 2. Jurisdiction over the person of a defendant is acquired
inconsistent posture by attacking the jurisdiction of a court to through a valid service of summons; trial court did not
which they submitted their cause voluntarily.35 acquire jurisdiction over the person of Manuel Toledo
In the first place, jurisdiction over the person of Manuel was Hence, the Supreme Court affirmed the dismissal by the trial
never acquired by the trial court. A defendant is informed of a court of the complaint against Sereno only.
case against him when he receives summons. "Summons is a
writ by which the defendant is notified of the action brought
Based on the foregoing pronouncements, there is no basis for
against him. Service of such writ is the means by which the
dismissing the complaint against respondent herein. Thus, as
court acquires jurisdiction over his person."40
already emphasized above, the trial court correctly denied her
motion to dismiss.
In the case at bar, the trial court did not acquire jurisdiction
over the person of Manuel since there was no valid service of
On whether or not the estate of Manuel
summons upon him, precisely because he was already dead
Toledo is an indispensable party
even before the complaint against him and his wife was filed
in the trial court. The issues presented in this case are similar
to those in the case of Sarsaba v. Vda. de Te.41 Rule 3, Section 7 of the 1997 Rules of Court states:

In Sarsaba, the NLRC rendered a decision declaring that SEC. 7. Compulsory joinder of indispensable parties. –
Patricio Sereno was illegally dismissed from employment and Parties-in-interest without whom no final determination can
ordering the payment of his monetary claims. To satisfy the be had of an action shall be joined either as plaintiffs or
claim, a truck in the possession of Sereno’s employer was defendants.
levied upon by a sheriff of the NLRC, accompanied by Sereno
and his lawyer, Rogelio Sarsaba, the petitioner in that case. A An indispensable party is one who has such an interest in the
complaint for recovery of motor vehicle and damages, with controversy or subject matter of a case that a final
prayer for the delivery of the truck pendente lite was adjudication cannot be made in his or her absence, without
eventually filed against Sarsaba, Sereno, the NLRC sheriff and injuring or affecting that interest. He or she is a party who
the NLRC by the registered owner of the truck. After his has not only an interest in the subject matter of the
motion to dismiss was denied by the trial court, petitioner controversy, but "an interest of such nature that a final
Sarsaba filed his answer. Later on, however, he filed an decree cannot be made without affecting that interest or
omnibus motion to dismiss citing, as one of the grounds, lack leaving the controversy in such a condition that its final
of jurisdiction over one of the principal defendants, in view of determination may be wholly inconsistent with equity and
the fact that Sereno was already dead when the complaint for good conscience. It has also been considered that an
recovery of possession was filed. indispensable party is a person in whose absence there
cannot be a determination between the parties already before
Although the factual milieu of the present case is not exactly the court which is effective, complete or equitable." Further,
similar to that of Sarsaba, one of the issues submitted for an indispensable party is one who must be included in an
resolution in both cases is similar: whether or not a case, action before it may properly proceed.44
where one of the named defendants was already dead at the
time of its filing, should be dismissed so that the claim may On the other hand, a "person is not an indispensable party if
be pursued instead in the proceedings for the settlement of his interest in the controversy or subject matter is separable
the estate of the deceased defendant. The petitioner in the from the interest of the other parties, so that it will not
Sarsaba Case claimed, as did respondent herein, that since necessarily be directly or injuriously affected by a decree
one of the defendants died before summons was served on which does complete justice between them. Also, a person is
him, the trial court should have dismissed the complaint not an indispensable party if his presence would merely
against all the defendants and the claim should be filed permit complete relief between him or her and those already
against the estate of the deceased defendant. The petitioner parties to the action, or if he or she has no interest in the
in Sarsaba, therefore, prayed that the complaint be subject matter of the action." It is not a sufficient reason to
dismissed, not only against Sereno, but as to all the declare a person to be an indispensable party simply because
defendants, considering that the RTC did not acquire his or her presence will avoid multiple litigations.45
jurisdiction over the person of Sereno.42 This is exactly the
same prayer made by respondent herein in her motion to
dismiss. Applying the foregoing pronouncements to the case at bar, it
is clear that the estate of Manuel is not an indispensable party
to the collection case, for the simple reason that the
The Court, in the Sarsaba Case, resolved the issue in this obligation of Manuel and his wife, respondent herein, is
wise: solidary.

x x x We cannot countenance petitioner’s argument that the The contract between petitioner, on the one hand and
complaint against the other defendants should have been respondent and respondent’s husband, on the other, states:
dismissed, considering that the RTC never acquired
jurisdiction over the person of Sereno. The court’s failure to
acquire jurisdiction over one’s person is a defense which is FOR VALUE RECEIVED, I/We jointly and severally46 (in
personal to the person claiming it. Obviously, it is now solemn) promise to pay BOSTON EQUITY RESOURCES, INC. x
impossible for Sereno to invoke the same in view of his death. x x the sum of PESOS: [ONE MILLION FOUR HUNDRED
Neither can petitioner invoke such ground, on behalf of (₱1,400,000.00)] x x x.47
Sereno, so as to reap the benefit of having the case dismissed
against all of the defendants. Failure to serve summons on The provisions and stipulations of the contract were then
Sereno’s person will not be a cause for the dismissal of the followed by the respective signatures of respondent as
complaint against the other defendants, considering that they "MAKER" and her husband as "CO-MAKER."48 Thus, pursuant
have been served with copies of the summons and complaints to Article 1216 of the Civil Code, petitioner may collect the
and have long submitted their respective responsive entire amount of the obligation from respondent only. The
pleadings. In fact, the other defendants in the complaint were aforementioned provision states: "The creditor may proceed
given the chance to raise all possible defenses and objections against any one of the solidary debtors or some or all of them
personal to them in their respective motions to dismiss and simultaneously. The demand made against one of them shall
their subsequent answers.43 (Emphasis supplied.) not be an obstacle to those which may subsequently be
directed against the others, so long as the debt has not been A cursory perusal of Section 6, Rule 86 of the Revised Rules
fully collected." of Court reveals that nothing therein prevents a creditor from
proceeding against the surviving solidary debtors. Said
provision merely sets up the procedure in enforcing collection
In other words, the collection case can proceed and the
in case a creditor chooses to pursue his claim against the
demands of petitioner can be satisfied by respondent only,
estate of the deceased solidary debtor. The rule has been set
even without impleading the estate of Manuel. Consequently,
forth that a creditor (in a solidary obligation) has the option
the estate of Manuel is not an indispensable party to
whether to file or not to file a claim against the estate of the
petitioner’s complaint for sum of money.
solidary debtor. x x x

However, the Court of Appeals, agreeing with the contention

xxxx
of respondent, held that the claim of petitioner should have
been filed against the estate of Manuel in accordance with
Sections 5 and 6 of Rule 86 of the Rules of Court. The It is crystal clear that Article 1216 of the New Civil Code is the
aforementioned provisions provide: applicable provision in this matter. Said provision gives the
creditor the right to "proceed against anyone of the solidary
debtors or some or all of them simultaneously." The choice is
SEC. 5. Claims which must be filed under the notice. If not
undoubtedly left to the solidary creditor to determine against
filed, barred; exceptions. All claims for money against the
whom he will enforce collection. In case of the death of one of
decedent, arising from contract, express or implied, whether
the solidary debtors, he (the creditor) may, if he so chooses,
the same be due, not due, or contingent, all claims for funeral
proceed against the surviving solidary debtors without
expenses and judgment for money against the decedent,
necessity of filing a claim in the estate of the deceased
must be filed within the time limited in the notice; otherwise,
debtors. It is not mandatory for him to have the case
they are barred forever, except that they may be set forth as
dismissed as against the surviving debtors and file its claim
counterclaims in any action that the executor or administrator
against the estate of the deceased solidary debtor, x x x. For
may bring against the claimants. x x x.
to require the creditor to proceed against the estate, making
it a condition precedent for any collection action against the
SEC. 6. Solidary obligation of decedent. Where the obligation surviving debtors to prosper, would deprive him of his
of the decedent is solidary with another debtor, the claim substantive rightsprovided by Article 1216 of the New Civil
shall be filed against the decedent as if he were the only Code. (Emphasis supplied.)
debtor, without prejudice to the right of the estate to recover
contribution from the other debtor. x x x.
As correctly argued by petitioner, if Section 6, Rule 86 of the
Revised Rules of Court were applied literally, Article 1216 of
The Court of Appeals erred in its interpretation of the above- the New Civil Code would, in effect, be repealed since under
quoted provisions. the Rules of Court, petitioner has no choice but to proceed
against the estate of [the deceased debtor] only. Obviously,
In construing Section 6, Rule 87 of the old Rules of Court, the this provision diminishes the [creditor’s] right under the New
precursor of Section 6, Rule 86 of the Revised Rules of Court, Civil Code to proceed against any one, some or all of the
which latter provision has been retained in the present Rules solidary debtors. Such a construction is not sanctioned by
of Court without any revisions, the Supreme Court, in the principle, which is too well settled to require citation, that a
case of Manila Surety & Fidelity Co., Inc. v. Villarama, et. substantive law cannot be amended by a procedural rule.
al.,49 held:50 Otherwise stated, Section 6, Rule 86 of the Revised Rules of
Court cannot be made to prevail over Article 1216 of the New
Civil Code, the former being merely procedural, while the
Construing Section 698 of the Code of Civil Procedure from latter, substantive.
whence [Section 6, Rule 87] was taken, this Court held that
where two persons are bound in solidum for the same debt
and one of them dies, the whole indebtedness can be proved Based on the foregoing, the estate of Manuel is not an
against the estate of the latter, the decedent’s liability being indispensable party and the case can proceed as against
absolute and primary; x x x. It is evident from the foregoing respondent only. That petitioner opted to collect from
that Section 6 of Rule 87 provides the procedure should the respondent and not from the estate of Manuel is evidenced by
creditor desire to go against the deceased debtor, but there is its opposition to respondent’s motion to dismiss asserting that
certainly nothing in the said provision making compliance with the case, as against her, should be dismissed so that
such procedure a condition precedent before an ordinary petitioner can proceed against the estate of Manuel.
action against the surviving solidary debtors, should the
creditor choose to demand payment from the latter, could be On whether or not the inclusion of Manuel as
entertained to the extent that failure to observe the same party defendant is a misjoinder of party
would deprive the court jurisdiction to take cognizance of the
action against the surviving debtors. Upon the other hand,
Section 11 of Rule 3 of the Rules of Court states that
the Civil Code expressly allows the creditor to proceed against
"neither misjoinder nor non-joinder of parties is ground for
any one of the solidary debtors or some or all of them
dismissal of an action. Parties may be dropped or added by
simultaneously. There is, therefore, nothing improper in the
order of the court on motion of any party or on its own
creditor’s filing of an action against the surviving solidary
initiative at any stage of the action and on such terms as are
debtors alone, instead of instituting a proceeding for the
just. Any claim against a misjoined party may be severed and
settlement of the estate of the deceased debtor wherein his
proceeded with separately."
claim could be filed.

Based on the last sentence of the afore-quoted provision of

The foregoing ruling was reiterated and expounded in the
law, a misjoined party must have the capacity to sue or be
later case of Philippine National Bank v. Asuncion51 where the
sued in the event that the claim by or against the misjoined
Supreme Court pronounced:
party is pursued in a separate case. In this case, therefore,
the inclusion of Manuel in the complaint cannot be considered
a misjoinder, as in fact, the action would have proceeded
against him had he been alive at the time the collection case have the capacity to be sued and may not be named a party
was filed by petitioner. This being the case, the remedy defendant in a court action. (Emphases supplied.)
provided by Section 11 of Rule 3 does not obtain here. The
name of Manuel as party-defendant cannot simply be dropped
Indeed, where the defendant is neither a natural nor a
from the case. Instead, the procedure taken by the Court in
juridical person or an entity authorized by law, the complaint
Sarsaba v. Vda. de Te,52 whose facts, as mentioned earlier,
may be dismissed on the ground that the pleading asserting
resemble those of this case, should be followed herein. There,
the claim states no cause of action or for failure to state a
the Supreme Court agreed with the trial court when it
cause of action pursuant to Section 1(g) of Rule 16 of the
resolved the issue of jurisdiction over the person of the
Rules of Court, because a complaint cannot possibly state a
deceased Sereno in this wise:
cause of action against one who cannot be a party to a civil
action.55
As correctly pointed by defendants, the Honorable Court has
not acquired jurisdiction over the person of Patricio Sereno
Since the proper course of action against the wrongful
since there was indeed no valid service of summons insofar as
inclusion of Manuel as party-defendant is the dismissal of the
Patricio Sereno is concerned. Patricio Sereno died before the
case as against him, thus did the trial court err when it
summons, together with a copy of the complaint and its
ordered the substitution of Manuel by his heirs. Substitution is
annexes, could be served upon him.
proper only where the party to be substituted died during the
pendency of the case, as expressly provided for by Section
However, the failure to effect service of summons unto 16, Rule 3 of the Rules of Court, which states:
Patricio Sereno, one of the defendants herein, does not
render the action DISMISSIBLE, considering that the three (3)
Death of party; duty of counsel. – Whenever a party to a
other defendants, x x x, were validly served with summons
pending action dies, and the claim is not thereby
and the case with respect to the answering defendants may
extinguished, it shall be the duty of his counsel to inform the
still proceed independently. Be it recalled that the three (3)
court within thirty (30) days after such death of the fact
answering defendants have previously filed a Motion to
thereof, and to give the name and address of his legal
Dismiss the Complaint which was denied by the Court.
representative or representatives. x x x

Hence, only the case against Patricio Sereno will be

The heirs of the deceased may be allowed to be substituted
DISMISSED and the same may be filed as a claim against the
for the deceased, without requiring the appointment of an
estate of Patricio Sereno, but the case with respect to the
executor or administrator x x x.
three (3) other accused [sic] will proceed. (Emphasis
supplied.)53
The court shall forthwith order said legal representative or
representatives to appear and be substituted within a period
As a result, the case, as against Manuel, must be dismissed.
of thirty (30) days from notice. (Emphasis supplied.)

In addition, the dismissal of the case against Manuel is further

Here, since Manuel was already dead at the time of the filing
warranted by Section 1 of Rule 3 of the Rules of Court,
of the complaint, the court never acquired jurisdiction over his
which states that: only natural or juridical persons, or entities
person and, in effect, there was no party to be substituted.
authorized by law may be parties in a civil action." Applying
this provision of law, the Court, in the case of Ventura v.
Militante,54 held: WHEREFORE, the petition is GRANTED. The Decision dated 28
February 2006 and the Resolution dated 1 August 2006 of the
Court of Appeals in CA-G.R. SP No. 88586 are REVERSED and
Parties may be either plaintiffs or defendants. x x x. In order
SET ASIDE. The Orders of the Regional Trial Court dated 8
to maintain an action in a court of justice, the plaintiff must
November 2004 and 22 December 2004, respectively, in Civil
have an actual legal existence, that is, he, she or it must be a
Case No. 97-86672, are REINSTATED. The Regional Trial
person in law and possessed of a legal entity as either a
Court, Branch 24, Manila is hereby DIRECTED to proceed with
natural or an artificial person, and no suit can be lawfully
the trial of Civil Case No. 97-86672 against respondent Lolita
prosecuted save in the name of such a person.
G. Toledo only, in accordance with the above pronouncements
of the Court, and to decide the case with dispatch.
The rule is no different as regards party defendants. It is
incumbent upon a plaintiff, when he institutes a judicial
SO ORDERED.
proceeding, to name the proper party defendant to his cause
of action. In a suit or proceeding in personam of an adversary
character, the court can acquire no jurisdiction for the
purpose of trial or judgment until a party defendant who
actually or legally exists and is legally capable of being sued,
is brought before it. It has even been held that the question
of the legal personality of a party defendant is a question of
substance going to the jurisdiction of the court and not one of
procedure.

The original complaint of petitioner named the "estate of

Carlos Ngo as represented by surviving spouse Ms. Sulpicia
Ventura" as the defendant. Petitioner moved to dismiss the
same on the ground that the defendant as named in the
complaint had no legal personality. We agree.

x x x. Considering that capacity to be sued is a correlative of

the capacity to sue, to the same extent, a decedent does not
 BOSTON EQUITY RESOURCES, INC. vs.
COURT OF APPEALS and LOLITA G. TOLEDO Applying jurisprudence, the case, as against Manuel,
must be dismissed.
FACTS: Petitioner BOSTON EQUITY RESOURCES, INC.
Since the proper course of action against the wrongful
filed a complaint for sum of money against the spouses
inclusion of Manuel as party-defendant is the dismissal
Manuel and Lolita Toledo. However, respondent Lolita Toledo
of the case as against him, the trial court made a
filed a Motion for Leave to Admit Amended Answer in which
mistake when it ordered the substitution of Manuel by
she alleged, among others, that her husband and co-
his heirs. Substitution is proper only where the party to
defendant Manuel Toledo is already dead.
be substituted died during the pendency of the case, as
expressly provided for by Section 16, Rule 3 of the
As a result, PETITIONER filed a motion to require
Rules of Court, which states:
respondent to disclose the heirs of Manuel. In compliance with
the verbal order of the court, RESPONDENT submitted the
Death of party; duty of counsel. – Whenever a party
required names and addresses of the heirs. PETITIONER
to a pending action dies, and the claim is not thereby
then filed a Motion for Substitution, praying that Manuel be
extinguished, it shall be the duty of his counsel to
substituted by his children as party-defendants. It appears
inform the court within thirty (30) days after such
that this motion was granted by the trial court.
death of the fact thereof, and to give the name and
address of his legal representative or
Six years and five months after she filed her amended
representatives. x x x
answer, RESPONDENT filed a motion to dismiss the
complaint on the ground that the trial court made a mistake
The heirs of the deceased may be allowed to be
in ordering the substitution of the deceased Manuel by his
substituted for the deceased, without requiring the
heirs.
appointment of an executor or administrator x x x.
The TRIAL COURT denied the motion to dismiss for having
The court shall forthwith order said legal
been filed out of time.
representative or representatives to appear and be
substituted within a period of thirty (30) days from
However, the COURT OF APPEALS granted the petition
notice. (Emphasis supplied.)
based on the ground that when the complaint was filed,
defendant Manuel S. Toledo was already dead. The complaint
In this case, since Manuel was already dead at the time
should have impleaded the estate of Manuel S. Toledo as
of the filing of the complaint, the court never acquired
defendant, not only the wife. The Court of Appeals also denied
jurisdiction over his person and, in effect, there was no
the petitioner's motion for reconsideration. 
party to be substituted.
Hence, this petition. 
DOCTRINE: In this case, the Supreme Court held that the
proper course of action against the wrongful inclusion of
PETITIONER argues that the CA made a mistake in not
Manuel as party-defendant is the dismissal of the case as
holding that the inclusion of Manuel as party-defendant is a
against him. Thus, the trial court erred when it ordered the
mere misjoinder of party not warranting the dismissal of the
substitution of Manuel by his heirs. Substitution is proper only
case before the lower court.
where the party to be substituted died during the pendency of
the case, as expressly provided for by Section 16, Rule 3 of
ISSUE: Whether or not the inclusion of Manuel as party
the Rules of Court, which states:
defendant is a misjoinder of party [NO]
Death of party; duty of counsel. – Whenever a party
RULING: Section 11 of Rule 3 of the Rules of Court states
to a pending action dies, and the claim is not thereby
that "neither misjoinder nor non-joinder of parties is a ground
extinguished, it shall be the duty of his counsel to
for dismissal of an action. Parties may be dropped or added
inform the court within thirty (30) days after such
by order of the court on motion of any party or on its own
death of the fact thereof, and to give the name and
initiative at any stage of the action and on such terms as are
address of his legal representative or
just. Any claim against a misjoined party may be severed and
representatives. x x x
proceeded with separately."
The heirs of the deceased may be allowed to be
Based on this provision of law, a misjoined party must have
substituted for the deceased, without requiring the
the capacity to sue or be sued in the event that the claim by
appointment of an executor or administrator x x x.
or against the misjoined party is pursued in a separate case.
In this case, therefore, the inclusion of Manuel in the
The court shall forthwith order said legal
complaint cannot be considered a misjoinder, as in fact,
representative or representatives to appear and be
the action would have proceeded against him had he been
substituted within a period of thirty (30) days from
alive at the time the collection case was filed by petitioner.
notice. 
This being the case, the remedy provided by Section 11
of Rule 3 does not obtain here. The name of Manuel as
Here, since Manuel was already dead at the time of the filing
party-defendant cannot simply be dropped from the case.
of the complaint, the court never acquired jurisdiction over his
Instead, the procedure taken by the Court in Sarsaba v.
person and, in effect, there was no party to be substituted.
Vda. de Te, whose facts resemble those of this case, should
be followed herein. There, the Supreme Court held that only
the case against Patricio Sereno, who died before the
summons, together with a copy of the complaint and its
annexes, could be served upon him, should be DISMISSED
and the same may be filed as a claim against the estate of
Patricio Sereno, but the case with respect to the three (3)
other accused should proceed.
 BOSTON EQUITY RESOURCES, INC. vs.
COURT OF APPEALS and LOLITA G. TOLEDO

FACTS: Petitioner BOSTON EQUITY RESOURCES, INC.

filed a complaint for sum of money against the spouses JOINDER OF CAUSES OF ACTION, under
Manuel and Lolita Toledo. However, respondent Lolita Toledo Section 5, Rule 2, is the assertion of as many causes
filed a Motion for Leave to Admit Amended Answer in which
she alleged, among others, that her husband and co- of action as a party may have against another in one
defendant Manuel Toledo is already dead. pleading alone & it is the process of uniting 2 or
As a result, PETITIONER filed a motion to require
more demands or rights of action in one action.
respondent to disclose the heirs of Manuel. In compliance with
the verbal order of the court, RESPONDENT submitted the On the other hand, MISJOINDER OF CAUSES
required names and addresses of the heirs. PETITIONER OF ACTION, under Section 6, Rule 2, is not a
then filed a Motion for Substitution, praying that Manuel be
substituted by his children as party-defendants. It appears ground for dismissal of an action. A misjoined
that this motion was granted by the trial court. cause of action may, on motion of a party or on the
Six years and five months after she filed her amended
initiative of the court, be severed and proceeded
answer, RESPONDENT filed a motion to dismiss the with separately. Where several causes of action
complaint on the ground that the trial court made a mistake are joined together in the suit which cannot be
in ordering the substitution of the deceased Manuel by his
heirs. joined there being no common question of law
and fact.
The TRIAL COURT denied the motion to dismiss for having
been filed out of time.

However, the COURT OF APPEALS granted the petition

based on the ground that when the complaint was filed,
MISJOINDER OF PARTIES. The inclusion of
defendant Manuel S. Toledo was already dead. The complaint parties (plaintiffs or defendants) in a single lawsuit
should have impleaded the estate of Manuel S. Toledo as
defendant, not only the wife. The Court of Appeals also denied
contrary to statute.
the petitioner's motion for reconsideration. 
Misjoinder of parties consists in joining as plaintiffs
Hence, this petition.  or defendants of those persons who have conflicting
ISSUE: Whether or not substitution is proper [NO]
interests, or who were not involved in the same
transaction or event.
RULING: The proper course of action against the
wrongful inclusion of Manuel as party-defendant is the
dismissal of the case as against him. The trial court
made a mistake when it ordered the substitution of
Manuel by his heirs. Substitution is proper only where
the party to be substituted died during the pendency of
the case, as expressly provided for by Section 16, Rule
3 of the Rules of Court, which states:

Death of party; duty of counsel. – Whenever a party

to a pending action dies, and the claim is not thereby
extinguished, it shall be the duty of his counsel to
inform the court within thirty (30) days after such
death of the fact thereof, and to give the name and
address of his legal representative or
representatives. x x x

The heirs of the deceased may be allowed to be

substituted for the deceased, without requiring the
appointment of an executor or administrator x x x.

The court shall forthwith order said legal

representative or representatives to appear and be
substituted within a period of thirty (30) days from
notice. (Emphasis supplied.)

In this case, since Manuel was already dead at the time

of the filing of the complaint, the court never acquired
jurisdiction over his person and, in effect, there was no
party to be substituted.