1997 Rules on Civil Procedure Rule 03

2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

Rule 03
PARTIES TO CIVIL ACTIONS
CLASSES OF PARTIES:

I. Real Parties in Interest

II. Representative Parties
III. Permissive Parties
IV. Indispensable Parties
V. Necessary Parties

Sec. 1. Who may be parties; plaintiff and defendant. - Only natural or

juridical persons, or entities authorized by law may be parties in a civil
action. The term "plaintiff" may refer to the claiming party, the counter-
claimant, the cross-claimant, or the third (fourth, etc.)-party plaintiff.
The term "defendant" may refer to the original defending party, the
defendant in a counterclaim, the cross-defendant, or other third (fourth,
etc.)-party defendant. (1a)

Q: Who may be parties to a civil case?

A: Only natural or juridical persons or entities authorized by law may be parties in a civil
action. So, you cannot sue or be sued unless you are a person. A dead man cannot sue and he
cannot be sued because he has no more personality.

That is why in one case, Brod Pito sued the firm name, “Paningkamot Store.” So, it is “Brod Pito
vs. Paningkamot Store.” The SC said, that is wrong. Paningkamot Store is not a person. PangaIan ng
tindahan iyan. The correct procedure is you sue the owner because he is the real person. But the
defect is not really substantial. It is only a formal defect that can easily be corrected.

“ENTITIES AUTHORIZED BY LAW”

Q: Give an example of an entity authorized by law which can be sued although it is not a
person.
A: The best example is Section 15 of this rule.

Section 15. Entity without juridical personality as defendant.- When two

or more persons not organized as an entity with juridical personality enter
into u transaction, they may be sued under the name by which they are
generally or commonly known.
In the answer of such defendant the names and addresses of the persons
composing said entity must all be revealed.

Another example of an entity authorized by law which may not be a natural or juridical person
is a labor union under the Labor Code. It is an entity authorized by law to file a case in behalf of the
of its members. Although it may not have been incorporated under the Corporation Law but
registered under the Labor Code.

Q: Who are the plaintiffs, defendants?

A: The term PLAINTIFF may refer to the claiming party, the original plaintiff, the
counter-claimant, the cross-claimant, the third (fourth, etc.)- party plaintiff. So, the word ‘plaintiff’
covers them.

The term DEFENDANT may refer to the original defending party, the defendant in a
counterclaim, the cross-defendant, or other third (fourth, etc.)-party defendant. These are explained
in Rule 6, Sections 6, 8 & 11.

I. REAL PARTIES IN INTEREST

Sec 2. Parties in interest. - A real party in interest is the party who

stands to be benefited or injured by the judgment in the suit, or the party

Property of LAKAS ATENISTA 76

1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

entitled to the avails of the suit. Unless otherwise authorized by law or

these Rules, every action must be prosecuted or defended in the name of the
real party in interest. (2a)

Q: Who is a real party in interest?

A: A real party in interest is the party who stands to be benefited or injured by the judgment in
the suit. (Section 2)

That is a new sentence taken form jurisprudence because the prior rule never gave a definition
of real parties in interest but jurisprudence gives a definition. That definition is taken from the
leading case of SALONGA VS. WARNER BARNES & CO. (88 Phil. 125). That is exactly how it is
defined and that definition has been repeated through the years.

every action must be prosecuted or defended

in the name of the real party in interest

So a complaint is dismissible if it is not made in the name of the real party in interest.

In an action to recover a piece of land , you do not file a case against tenant. He is not the real
party in interest. You must file the case against the owner of the land.

When you are riding in a bus which collided and you were injured, do not file a case against the
driver for damages. Your contract in not with the drive. Your contract is with the operator. So you
file a case of culpa contractual against the owner or operator.

GENERAL RULE: In a breach of contract, the real parties in interest are the parties to the
contract. So strangers, as a rule, have no business suing in a contract because they are not real
parties in interest.
EXCEPTION: When there is a stipulation in the contract favorable to a third person (stipulation
pour autrui – Art. 1311, NCC) Example: Third-Party Liability (TPL) in insurance. A insured his car
with B for TPL. A bumped C. C can file a case against A and B to recover from the insurance
contract.

BALIWAG TRANSIT vs. COURT OF APPEALS

169 SCRA 649 [1989 BAR]

FACTS: A student who was riding in one of the Baliwag buses met an accident. So,
an action was filed where the parents and the injured boy were the co-plaintiffs against
Baliwag Transit. While the case was going on, the boy entered into amicable settlement
with the bus company. Based on the settlement, Baliwag moved to dismiss the case. The
parents objected, “We are objecting because we are also plaintiffs. We didn’t know about
the settlement. We were the ones who spent money, therefore it should not be dismissed
simply because our son is withdrawing the case.”

HELD: The parents are not the real party in interest. The were not the passengers.
The real parties in a contract of carriage are the parties to the contract itself. “In the
absence of any contract of carriage between the transportation company and the parents
of the injured party, the parents are not real parties in interest in an action for breach of
contract.”

SALONGA vs. WARNER BARNES

88 Phil. 125 [Bar Problem]

FACTS: Aiza Guadolope decided to go abroad but she has properties in the
Philippines. So she executed a special power of attorney in favor of Ken A. Sabayah:

Property of LAKAS ATENISTA 77

1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

“You have the full power to administer, to collect all my money; to withdraw my money in the
bank; with full power to sue these people who owe me; with the authority to hire a lawyer; and
enter into a contract. Practically, you are my alter ego.” And then Aiza went abroad.
Ken started to manage the property. One of the tenants failed to pay rentals. So in
accordance with the authority, he hired a lawyer. In preparation of the complaint, it was
stated that, “ Ken, plaintiff vs. Lewee Yoda, defendant.”

ISSUE: Is the action properly filed?

HELD: NO. The real property in interest is the principal, the owner of the property.
Ken is only an attorney-in-fact. An attorney-in-fact cannot use in his own name because
he is not the real party in interest. Ken is given the authority to sue, to manage, hire a
lawyer but not as the plaintiff because the real party in interest is Aiza. The complaint
should be name as “Aiza, plaintiff vs. Leewee Yoda, defendant.” Yaan!

Q: Suppose Ken, the lawyer will amend the complaint: “Ken, as attorney-in-fact of Aiza,
plaintiff vs. Leewee Yoda, defendant” is the complaint properly filed.
A: NO. This is even worse because Ken is admitting that he is only an attorney-in-fact. The
more reason na nahalata ka that he is not the real party in interest. If Ken wants to include the his
name, it should be: “Aiza, plaintiff, represented by Ken, his attorney-in-fact vs. Leewee Yoda,
defendant.”

Q: Does the law require Aiza to come here to file the case?
A: NO. Take note that the law does not require the principal (A) to come back to file the case
because, the law does not say “every action must be prosecuted and defendant BY the real party in
interest.” Hindi naman sinabing “by” eh. So an attorney-in-fact can prosecute or defend a party but
in the name of the real party in interest. The real party in interest has submitted to the jurisdiction
of the court by filing the complaint through his lawyer.

II. REPRESENTATIVE PARTY

Sec. 3. Representatives as parties. - Where the action is allowed to be

prosecuted or defended by a representative or someone acting in a fiduciary
capacity, the beneficiary shall be included in the title of the case and
shall be deemed to be the real party in interest. A representative may be a
trustee of an express trust, a guardian, an executor or administrator, or a
party authorized by law or these Rules. An agent acting in his own name and
for the benefit of an undisclosed principal may sue or be sued without
joining the principal except when the contract involves things belonging to
the principal. (3a)

Section 3 is a relaxation of Section 2 because under Section 2, you cannot sue and be sued if you
are not the real party in interest. But Section 3 allows one who is not a real party in interest to sue
and be sued in behalf of somebody else. It is possible if you can qualify as a representative party.

Example: GUARDIAN. Suppose Judee, a minor was injured. A case for damages has to be filed
in behalf of the minor. A minor cannot use and be sued but she is the real party in interest. The law
allows the parents to come in and also be the plaintiff. The parents are what we the representative
party. The law still requires for the minor to be included in the case. The law states that “the
beneficiary shall be included in the title of the case and shall be deemed to be the real party in
interest.”

Example: TRUSTEE; EXECUTOR; ADMINISTRATOR. Another example is a trustee of an

express trust, or executor or administrator of the estate of a deceased person. When a person dies,
what survives after him is his estate which represent everything that is left behind. This later on
will be given to his heirs. But for the meantime under the law on succession, the executor or
administrator will take charge of his property.

Property of LAKAS ATENISTA 78

1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

Q: If the estate of the deceased has some collectibles, who will file the case?
A: The administrator or executor as the representative party. If you want to sue the estate, you
should sue the estate through the administrator or executor.

CHING vs. COURT OF APPEALS

181 SCRA 9

FACTS: Angel Maya wanted to sue Devil John who owe her a sum of money. The
problem is, she cannot locate John’s whereabouts. Also, Maya was not certain whether
John is dead or alive. So, to play it safe, what the Maya did was to file a case against the
“defendant and/or the estate of defendant.” Maya obtained a judgment against the
‘defendant and/or the estate of defendant.’
Later on when the judgment was enforced, it turned out that the John was already
dead (tsk! tsk!) but he has properties left behind. So, they started to take hold of their
properties. Now, the heirs of the John challenged the decision.

ISSUE: Whether or not there was a valid judgment against the ‘defendant/or the
estate of the defendant.”

HELD: The decision is void. “The decision of the lower court insofar as the deceased
is concerned, is void for lack of jurisdiction over his person. He was not, and he could
not have been validly served with summons. He had no more civil personality. His
juridical personality, that is fitness to be subject of legal relations, was lost through death
(Arts. 37 and 42 Civil Code).”
“The same conclusion would still inevitably be reached notwithstanding joinder of
B’s estate as co-defendant. It is a well-settled rule that an estate can sue or be sued
through an executor or administrator in his representative capacity.”

So, the Court cited Section 3. In order to bind the estate, you should sue the executor or the
administrator of his estate. So, either way, the case cannot prosper.

The last sentence of Section 3:

An agent acting in his own name and for the benefit of an undisclosed
principal may sue or be sued without joining the principal except when the
contract involves things belonging to the principal.

The agent cannot sue because the principal is the real party in interest. But when an agent acts
in his own name and for the benefit of an undisclosed principal, he may sue and be sued, EXCEPT
when the contract involves things belonging to the principal. Under the exception, the principal has
really to be included. The agent cannot file a case where the principal will lose his property without
being named as part to the case.

Sec 4. Spouses as parties. - Husband and wife shall sue or be sued

jointly, except as provided by law. (4a)

Normally, the husband and the wife should sue and be sued together. Even if the wife
borrowed money alone and you want to sue the woman, still the husband should be included.
Why? In the property relationship between the husband and wife, they are governed by absolute
community or conjugal partnership. Whether you like it or not, the implication of the wife is also
the implication of the husband because of the property relationship.

In the same manner, if the wife wants to collect, even if the husband does not know anything
about it, the husband should still be named as party plaintiff, on the ground again that in the
income that she can get redounds to the benefit of the conjugal partnership.

Property of LAKAS ATENISTA 79

1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

And there were decided cases in the part where even if for example, a wife sues without the
husband, the defect is not fatal but merely format. The complaint should not be dismissed. All that
is to be done is to amend the complaint impleading the husband. (Cuyugan vs. Dizon, 76 Phil. 80)

Q: Give an exception to that general rule that husband and wife shall sue or be sued jointly.
A: The EXCEPTION is in case of Complete Separation of Property (Article 145, Family Code),
and under Article 111, Family Code:

Art. 111. A spouse of age may mortgage, alienate, encumber or otherwise

dispose of his or her exclusive property without the consent of the other
spouse and appear alone in court to litigate with regard to the same.
(Family Code)

Sec 5. Minor or incompetent persons. - A minor or a person alleged to be

incompetent, may sue or be sued, with the assistance of his father, mother,
guardian, or if he has none, a guardian ad litem. (5a)

Section 5 is related to Section 3. The minor or incompetent person must be assisted by the
parents and considered as representative party. Incompetent persons includes insane people or
mentally retarded people. They are supposed to be under the custody of other persons, the
guardians. If no guardian, the court has to appoint a guardian called the guardian ad litem.

III. PERMISSIVE PARTY

Sec 6. Permissive joinder of parties. - All persons in whom or against

any right to relief in respect to or arising out of the same transaction or
series of transactions is alleged to exist, whether jointly, severally, or
in the alternative, may, except as otherwise provided in these Rules, join
as plaintiffs or be joined as defendants in one complaint, where any
question of law or fact common to all such plaintiffs or to all such
defendants may arise in the action; but the court may make such orders as
may be just to prevent any plaintiff or defendant from being embarrassed or
put to expense in connection with any proceedings in which he may have no
interest. (6)

Section 6 is known as permissive joinder of parties. This is related to Section 5 [a] of Rule 2 on
joinder of causes of action because when there is proper joinder of parties, necessarily there is also
automatic joinder of causes of action. But there could be joinder of causes of action without joinder
of parties.

Q: May two or more persons join in one complaint as plaintiffs? Or can two or more persons be
joined together as defendants?
A: YES, under two conditions, to wit:

1.) There is a right to relief in favor of or against or against the parties joined in respect to or
arising out of the same transaction or series of transactions; and

2.) There is a question of law or fact common to the parties joined in the action.

PROBLEM: Suppose some passengers riding a particular common carrier are injured because of
an accident. All of them want to sue the operator of the carrier for damages arising out of the
breach of contract of carriage. Under the Law on Transportation, it possible for each passenger to
file his own case because our causes of action are different from each other. But can they be joined
together in one complaint against the common carrier?
A: YES because there is a common question of law or fact in the causes of actions of the injured
passengers: the evidence is identical; the issues whether the carrier is at fault are the came; the
witnesses for both parties will be the same; the report will be the same; the defense of the operator

Property of LAKAS ATENISTA 80

1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

against one party will be the same defense as against the other passenger. So, since there is a
common denominator on their causes of action, they can be joined.

It would be different if the passengers were riding on different buses belonging to the same
company, and all of them met an accident. What happened to Passenger No. 1 does not concern
Passenger No. 2. The evidence will not be the same. So, there is no common denominator – no
common question of fact. Therefore, they cannot be joined.

PROBLEM: Suppose a story appeared in the Inquirer where 5 people were called as jueteng
kings. They were allegedly involved in jueteng – these are the jueteng kings: Ken, Kenneth, Francis,
Thad and Sheriff. Now, the five of them want to sue the Inquirer for damages arising from libel. Is
it possible for the five (5) people named in the article to file only one complaint against the editor
and publisher of the Inquirer?
A: YES because it is of the same story. Their names appeared in the same story. It is not a
different issue. So there is a common question of act law in their cause of action.

PROBLEM: Myra, while driving a car, bumped another vehicle, injuring the driver and causing
injury to other passengers. So, there are three offended parties : the owner of the vehicle, the driver
of the vehicle , and the passenger. There are three(3) causes of action. Can they join in one
complaint against Myra, the owner of the car which bumped them?
A: YES because there is a common question of fact and law. There is only one accident.

Q: But suppose the three of them will file 3 separate cases against Myra, puwede?
A: Puwede, because permissive joinder of parties is not mandatory. Kaya nga ‘permissive’ eh! It
is not mandatory but optional although the law encourages permissive joinder of parities.

Q: Why does the law encourage joinder of parties?

A: The following are the reasons:

1.) to promote convenience in trial;

2.) to prevent multiplicity of suits;
3.) to expedite the termination of the litigation; and
4.) to attain economy of procedure under which several demands arising out of the same
occurrence may be tried together thus avoiding the repetition of evidence relating to
facts common to the general demands.

Now, take note that when there is joinder of parties, there is automatically a joinder of causes of
action. That is why one of the conditions of limitations in joinder of causes of action is you must
observe the rule on joinder of parties. If joinder of parties is improper under Rule 3, the joinder of
causes of action is also proper under Rule 2, Section 5

Principle: WHEN THERE IS JOINDER OF PARTIES, THERE IS ALSO A JOINDER OF CAUSES

OF ACTION. BUT THERE CAN BE A JOINDER OF CAUSES OF ACTION WITHOUT A JOINDER
OF PARTIES.

Paano yun?

EXAMPLE: When there is only one plaintiff and one defendant: Suppose Melissa will secure
three (3) loans from me.
Q: How many causes of action do I have if Melissa will not pay me?
A: Three (3) man ba!

Q: Now, can I join them in one complaint?

A: Yes.

Q: Is there joinder of causes of action?

Property of LAKAS ATENISTA 81

1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

A: Yes.

Q: Is there joinder of parties?

A: NONE, because there is only one plaintiff and one defendant.

So, there can be joinder of causes of action without joinder of parties because there is only one
plaintiff and one defendant. But if you join parties in Rule 3, automatically, there is joinder of
causes of action. This is the relationship of these two provisions.

Finally, the last two types of parties to the action are the so-called indispensable parties and
necessary parties. (Section 7 and Section 8, respectively)

INDISPENSABLE PARTY and NECESSARY PARTIES

Sec. 7. Compulsory joinder of indispensable parties. Parties in interest

without whom no final determination can be had of an action shall be joined
either as plaintiffs or defendants. (7)

Sec. 8. Necessary party. A necessary party is one who is not

indispensable but who ought to be joined as a party if complete relief is to
be accorded as to those already parties, or for a complete determination or
settlement of the claim subject of the action. (8a)

Take note that under the Old Rules, Section 8, the party there was called ‘proper party.’ Now
they change the word from ‘proper party’ to ‘necessary party.’ This readopts the old name under
the 1940 Rules. Under the old rules, the parties were either indispensable or necessary. Then under
the 1964 Rule, it was changed from ‘necessary’ to ‘proper.’ Now, under the new rule, back to its old
name: ‘necessary party.’

Q: Distinguish indispensable from necessary party.

A: An INDISPENSABLE PARTY must be joined under any and all conditions, his presence
being a sine qua non of the exercise of judicial power, for without him, no final determination can be
had of the action. (Borlasa vs. Polistico, 47 Phil. 345)
A NECESSARY PARTY ought to be joined whenever possible in order to adjudicate the whole
controversy and avoid multiplicity of suits, but if for some reason or another he cannot be joined,
the court may proceed without him and the judgment shall not prejudice his rights. (Ibid.)

Q: Give examples of indispensable party.

A: In an action for partition of land, all the co-owners thereof are indispensable parties. (De Lara
vs. De Lara, 2 Phil. 294) In an action for annulment of partition, all of the heirs must be made
parties. (Caram vs. CA, 101 Phil. 315) In an action for recovery of ownership of land, the person
who claims to be the owner of the land is the indispensable party defendant and not the one in
possession as tenant. (Sanidad vs. Cabotaje, 5 Phil. 204; Manza vs. Santiago, 96 Phil. 938)

Q: Give examples of necessary party.

A: In an action for collection of debt instituted by the creditor against the surety, the principal
debtor is merely a necessary party. (Vaño vs. Alo, 95 Phil. 495) In an action for recovery of debt
instituted by the creditor against the debtor, the guarantor or surety is merely a necessary property.
(Ibid.) In an action for foreclosure of a real estate mortgage instituted by the first mortgagee, the
second mortgagee is merely a necessary party. (Somes vs. Gov’t of Phil., 62 Phil. 432)

REVIEW: What is the difference between a surety and a guarantor? The liability of guarantor to
the creditor is only secondary. Meaning, the guarantor is only liable to the creditor if the principal
debtor cannot pay like when the debtor is insolvent. On the other hand, a surety is principally
liable to the creditor whether or not the debtor can pay.

PROBLEM: In credit transactions, there is a creditor, debtor and surety. Debtor borrowed
money from the creditor, then another acted as the surety. Now, suppose the debtor will not pay,

Property of LAKAS ATENISTA 82

1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

the creditor files now a case against the surety without the debtor. The debtor was not included in
the case.
Q: Can the case proceed even without the debtor being sued?
A: YES, the case may proceed.

Now, the surety may be ordered to pay. Pero bag binayaran ng surety iyong creditor, what will
he do next? He will now sue the principal debtor for reimbursement. Meaning, there is still a future
case. Thus, there could be no complete relief between those who are parties. So, the debtor is a
necessary party, and not indispensable. But it is advisable to join the debtor in one case, para pag
nag-claim ang creditor from the surety, the latter can automatically claim from the debtor. Pang-one
time ba!

PROBLEM: Kuya Mortz borrowed money from Doña Eugenia a.k.a. Genie. Ate Maya is the
guarantor. The Doña Genie filed a case against Kuya Mortz. She did not include the guarantor.
Q: Can the case proceed even without the guarantor?
Q: YES because the guarantor is merely a necessary party. And if the debtor turns out to be
insolvent, the creditor will now file another case against the guarantor.

REVIEW: What is the difference between joint debtors and solidary debtors? In solidary, the
creditor can collect the whole obligation from any of the debtors without prejudice to the right of
the latter for reimbursement of his share in the obligation from his co-debtors. On the other hand, in
joint obligation, the creditor can only get from a debtor the latter’s share in the whole obligation.
Meaning, the creditor cannot compel the debtor to pay the share of his co-debtor. Kanya-kanya
tayo.

PROBLEM: Manuel and Cathy are JOINT debtors of P100,000 (50-50 sharing). Doña Eugenia is
the creditor. Both did not pay Doña Eugenia.
Q: If Doña Eugenia files a case against Manuel only, can the case proceed without Cathy?
A: YES but Doña Eugenia can only collect from Manuel up to P50,000 only because of their joint
obligation. Cathy is only necessary insofar as Manuel’s share is concern. But Manuel is
indispensable party insofar as his share is concern.
Q: But if Doña Eugenia wants to collect the entire P100,000, what should she do?
A: She should file a case against both Manuel and Cathy.

PROBLEM: Manuel and Cathy are SOLIDARY debtors of P100,000 (50-50 sharing). Doña
Eugenia is the creditor. Both did not pay Doña Eugenia.
Q: If Doña Eugenia files a case against Manuel only, can the case proceed without Cathy?
A: YES and Manuel is required to pay Doña Eugenia the whole amount of the debt because of
solidary obligation. Then Manuel can proceed against Cathy for reimbursement. Be is merely
necessary party.

Sec. 9. Non-joinder of necessary parties to be pleaded. Whenever in any

pleading in which a claim is asserted a necessary party is not joined, the
pleader shall set forth his name, if known, and shall state why he is
omitted. Should the court find the reason for the omission unmeritorious, it
may order the inclusion of the omitted necessary party if jurisdiction over
his person may be obtained.
The failure to comply with the order for his inclusion, without
justifiable cause, shall be deemed a waiver of the claim against such party.
The non-inclusion of a necessary party does not prevent the court from
proceeding in the action, and the judgment rendered therein shall be without
prejudice to the rights of such necessary party. (8a, 9a)

If you do not implead a necessary party, you must give an explanation why did you not
implead him. The law requires as much as possible that all parties be impleaded to avoid
multiplicity of suits. EXAMPLE: Tato “The Hunk” files a case against Andre “The Hippie”, a
surety, without including Sheriff “The Punk” as the debtor. In the complaint of Tato, he shall
explain why he is not including Sheriff.

Property of LAKAS ATENISTA 83

1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

Assuming that a necessary party cannot be impleaded, his non-inclusion does not prevent the
court from proceeding with the action. The judgment rendered shall be without prejudice to the
rights of such necessary party.

However, if the court finds no valid reason for not impleading a party, the court may order the
inclusion of the necessary party under Section 9. And take note that under the new rules, the failure
to comply with the order of inclusion without justifiable cause shall be deemed a waiver of the
claim against such (necessary) party.

EXAMPLE: If Tato, without justifiable cause, refuses to include Sheriff despite the order of the
court, and later on, Andre cannot also pay Tato, there is no way now for Tato to go against Sheriff
anymore because he (Tato) failed to comply with the order of inclusion without justifiable cause.

Sec. 10. Unwilling co-plaintiff. If the consent of any party who should
be joined as plaintiff can not be obtained, he may be made a defendant and
the reason therefor shall be stated in the complaint. (10)

This is particularly true with INDISPENSABLE parties – the case cannot proceed without you.

EXAMPLE : There are 4 brothers and 1 sister. They have to file a case against somebody to
recover property which they believe was owned by their parents. Then, brother 4 say to sister 1,
“Let us file a case.” But sabi ni sister 1, “Pilitin mo muna ako.” Then she says, “Ayoko nga, hindi
mo ako pinilit eh!” Meaning, all of them will suffer because ayaw ni sister 1 mag-file ng kaso.

Q: Now, what is the remedy of the 4 brothers?

A: Under Section 10, include the one who refused as one of the defendants. If there is unwilling
plaintiff, name him as defendant whether he likes it or not.

MISJOINDER AND NON-JOINDER OF PARTIES

Sec. 11. Misjoinder and non-joinder of parties. Neither misjoinder nor

non-joinder of parties is ground for dismissal of an action. Parties may be
dropped or added by order of the court on motion of any party or on its own
initiative at any stage of the action and on such terms as are just. Any
claim against a misjoined party may be severed and proceeded with
separately. (11a)

This is similar to Section 6 of Rule 2 – misjoinder of causes of action is not a ground for
dismissal of an action. Misjoinder or non-joinder at parties is not a ground for a motion to dismiss
because at any stage of the case, the court can order a misjoined party to be removed or a party not
joined to be included.

Q: Do you know what ‘MISJOINDER of parties’ mean?

A: It means that two or more parties should not be joined but they are improperly joined. A
good example is, if there is no common question of fact or law. Meaning, you do not have any
business to be here but you are joined or misjoined. That is what we call misjoinder of parties. It is
also known as “spurious class suit.”

Well, ‘NON-JOINDER’ is different. A party who should be joined was not joined such as a
necessary party.

Q: What happens if a party is misjoined or if there is a non-joinder, should the case be

dismissed?
A: Not, that is not a ground for dismissal.

Q: So what is the remedy then?

A: The remedy is to order the removal of the party who is misjoined, or to order the inclusion of
the party who should be joined. And that is not a defect which should cause the dismissal of

Property of LAKAS ATENISTA 84

1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

the case because the can always issue an order ordering the removal of a misjoined party or the
inclusion of joinder of a party who should be included.

Q: Does it mean to say therefore, that the plaintiff has the license to include anybody in an
action? Like for example, I have a case against somebody in the class, the trouble is in the
meantime, I cannot identify who among you who did the wrong to me. So I will file a case against
all of you. Anyway later on, I can dump you kung hindi ka talaga sabit. Now, is this allowed?
A: NO. That is not a license. What the law contemplates, according to the SC, the party was
joined in good faith believing that he was a defendant but actually it turned out to be wrong. So,
you have no right to sue anybody just like that. That is not an excuse for suing any party left and
right. In the case of

REPUBLIC vs. SANDIGANBAYAN

173 SCRA 72 [1989]

HELD: Section 11 of Rule 3 “does not comprehend whimsical and irrational

dropping or adding of parties in a complaint. What it really contemplates is erroneous
or mistaken non-joinder and misjoinder of parties. No one is free to join anybody in a
complaint in court only to drop him unceremoniously later at the pleasure of the
plaintiff. The rule presupposes that the original inclusion had been made in the honest
conviction that it was proper and the subsequent dropping is requested because it
turned out that such inclusion was a mistake.”

CLASS SUIT

SEC. 12. Class suit. When the subject matter of the controversy is one of
common or general interest to many persons so numerous that it is
impracticable to join all as parties, a number of them which the court finds
to be sufficiently numerous and representative as to fully protect the
interests of all concerned may sue or defend for the benefit of all. Any
party in interest shall have the right to intervene to protect his
individual interest. (12a)

As a GENERAL RULE, if there are several real parties in interest, they shall be included in the
case whether indispensable or necessary. Example: There are 30 of us. The general rule is that all
parties in interest, indispensable or necessary shall be included.
EXCEPTION to the General Rule: Class Suit. Meaning, some of you will sue to represent the
rest. That is also known as the “doctrine of virtual representation.” The concept of a class suit was
first enunciated in the old case of

BORLAZA vs. POLISTICO

47 Phil. 345

FACTS: This case has something to do with raffle. A group of people decided to
form an association which they called “Turnuhang Polistico.” You become a member of
this association by contributing a certain sum of money. And then every Sunday after
mass, half of the collection will go to the treasurer of the association. The other half will
be raffled off. This has been going on for months and years. The time came when the
funds of the association became very big. Some of the members, in behalf of all the
members, decided to file a case against the officers to render an accounting of all the
amounts. The real parties in interest would be the members.

ISSUE: Is the suit filed by some members in behalf of some members proper?

HELD: YES, because if We will require all the members to appear, it will be quite
impossible. Therefore, some members must be made to sue but only in behalf of all the
members who are not around and it is impracticable to bring them all to the court. A
number of them may sue for the benefit of all.

Property of LAKAS ATENISTA 85

1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

Q: What are the CONDITIONS FOR A VALID CLASS SUIT ?

A: Under Section 12, the following are the conditions of a valid class suit:

1. The subject matter of the controversy is one of common or general interest to many
persons (such as the funds of the association in the case of POLISTICO); and
2. The parties are so numerous that it is impracticable to bring them all before the court.

In which case a number of them which the court finds to be sufficient and numerous and
representative as to fully protect the interests of all concerned may sue or defend for the benefit of
all. Example is a taxpayer’s suit – filed in behalf of all the taxpayers in the Philippines. And there is
no specific number of persons that is provided by law.

Now, we will go to some interesting cases on class suit decided by the Supreme Court:

SULO NG BAYAN vs. ARANETA, INC.

72 SCRA 347 [1976]

FACTS: This concerns the big property of the Araneta’s in Quezon City. It has been
the subject matter of litigation for the past years – 3 or 4 decades. It is a big track of land
in Quezon City occupied by so many people who want to acquire it. They are
questioning the title of the Araneta’s
So, Sulo (torch) ng Bayan is the association of squatters. Since the properties of the
Araneta is very big, they subdivided it – kanya-kanyang lote. Then a case was filed by
Sulo ng bayan Association against Araneta to annul the title of the latter.

ISSUE #1: Whether or not the action was file in the name of the real in interest.
HELD: Sulo ng Bayan is not the real party in interest. It violates Section 2 – “the
action must be prosecuted and defended in the name of the real parties in interest.” The
members occupying the land are the plaintiffs. The association is not the one occupying
the lot. So, the first question is, who should be the plaintiff? It should be the members.

ISSUE #2: Whether or not the action was properly pleaded as a class suit
HELD: NO. This is the more important reason why they cannot qualify as a class
suit: In a class suit, the subject matter is of common interest to all. Meaning, lahat tayo is
interesado. To illustrate:
You are Occupant No. 1, which lot do you occupy? “Here (a particular lot).” Meron
ka bang interest diyan? “Meron.” Do you have an interest in that (another lot)
portion? “Wala.” If that is so, then the subject matte is not of common interest. The
interest of one occupant is only on the lot he occupies. Meaning, “My neighbor does not
have an interest on the lot I occupied.”

What should be done is that all of them to sue together to cover the entire property, for each one
has a lot. So, in that case, Section 6 should be applied – permissive joinder of parties because there is
a common question of fact. This is more of permissive joinder of Parties rather than a class suit.
That’s why you can confuse Section 6 with Section 12. But the permissive joinder of parties
kailangan, lahat kayoi nandiyan. Hindi puwede na I will represent you. Kanya-kanya yan but they
can join together. Unlike in a class suit, the subject matter is of interest to everybody and we cannot
all be joined because we are so numerous.

BULIG-BULIG KITA KAMAGANAK ASSOCIATION, ET AL vs. SULPICIO

LINES
May 19, 1989

RE: Doña Paz Tragedy – iyong lumubog na barko owned by Sulpicio Lines.

Property of LAKAS ATENISTA 86

1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

FACTS: There we so many relatives who filed a case against Sulpicio Lines and there
was an attempt to file a class suit in behalf of everyone who were drowned including
those who were not identified.

HELD: That cannot be. The survivors have no interest in the death of other
passengers. The interest in this case is individual. What would have been proper is
permissive joinder of parties because of common question of tact or law, but not class
suit.

OPOSA vs. FACTORAN

224 SCRA 12 [1993]

FACTS: Oposa et al were all minors. Some were small boys duly represented by
their parents. They filed a case against then DENR Secretary Factoran. The prayer in the
case is to order the DENR to cancel all existing Timber License Agreements (TLA’s), to
cease and desist from proceeding, accepting, processing, renewing all accruing new
TLA’s. So, in effect, it prays for a total log ban in the country to preserve the remaining
forest all over the Philippines.
These young boys sue with their parents. They are suing in their behalf, in behalf of
the other citizens who are of their age because they stand to suffer if the environment
will be deteriorated. They say that they are entitled to the full benefit, use and enjoyment
of the natural resources of our country’s rich tropical rainforests. They say, the case was
tiled for themselves and others for the preservation of our rainforest and we are so
numerous that it is impracticable to bring all plaintiffs to court. They say that they
represent their generations and generations yet unborn.

HELD: The civil case is indeed a class suit. The case however has a special and novel
element. The personality of the minors to sue for the succeeding generations is based on
the concept of inter-generational responsibility insofar as a balanced and healthful
ecology is concerned. Every generation has a responsibility to preserve the ecology. The
minors’ right to a sound environment constitute at the same time the performance of the
obligation to ensure the protection of the rights or the generations to come.

Q: In case of doubt, should a class suit be allowed?

A: NO. When the issue is not so clear, a class suit should not be allowed b e cause class suit is an
exception to the general rule that all parties should be included.

CADALIN vs. POEA ADMINISTRATOR

238 SCRA 721 [1995]

HELD: While it is true that class suit is allowed, it should be allowed with caution
because the fact that you represent others is only a fiction of law. For all you know, those
others may not want to be represented. So okey lang kung manalo ang kaso. Eh kung
matalo ang kaso? All others start blaming you. That is why the court is extra-cautious in
allowing class suits because they are the exceptions to the condition sine qua non
requiring joinder of all indispensable parties.
In an improperly instituted class suit, there would be no problem it the decision
secured is favorable to the plaintiffs. The problem arises where the decision is adverse to
them. In which case, the parties who are impleaded through their self-appointed
representatives would surely plead denial of due process.

Q: Distinguish a representative suit from a class suit.

A: In the case of

LIANA’S SUPERMARKET vs. NLRC

Property of LAKAS ATENISTA 87

1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

257 SCRA 186 [May 31, 1996]

FACTS: A labor union filed a case against the employer in behalf of hundreds of
employees. Is this a representative suit or a class suit?

HELD: “What makes the situation a proper case for a class suit is the circumstance
that there is only one right or cause of action pertaining or belonging in common to
many persons, not separately or severally to distinct individuals. The object of the suit is
to obtain relief for or against numerous persons as a group or as an integral entity, and
not as separate, distinct individuals whose rights or liabilities are separate from and
independent of those affecting the others.”
In a representative suit, there are different causes of action pertaining different
persons.
“In the present case, there are multiple rights or causes of action pertaining
separately to several, distinct employees who are members of respondent Union.
Therefore, the applicable rule is that provided in Rule 3 on Representative Parties.
Nonetheless, as provided for in the Labor Code, a legitimate labor organization has the
right to sue and be sued in its registered name. This authorizes a union to file a
representative suit for the benefit of its members in the interest of avoiding an otherwise
cumbersome procedure of joining all union members in the complaint, even if they
number by the hundreds.” For convenience, the Labor Code allows a union to file a
representative suit.

It is important to note the following:

1. CLASS SUIT
2. REPRESENTATIVE SUIT
3. DERIVATIVE SUIT – only peculiar to the corporation law where the minority files a suit
in behalf of the entire corporation because intra-corporate remedy is useless.

ALTERNATIVE DEFENDANTS

Sec. 13. Alternative defendants. Where the plaintiff is uncertain against

who of several persons he is entitled to relief, he may join any or all of
them as defendants in the alternative, although a right to relief against
one may be inconsistent with a right of relief against the other. (13a)

Alternative defendants is also related to alternative causes of action – even if your right against
one is inconsistent with your right to relief against the other party, you may file a suit against the
alternative defendant. (c.f. Rule 2, Section 5 – Joinder of Causes of Action)

You filed a case against the operators of two vehicles. In effect, your cause of action is either
culpa aquiliana or culpa contractual. Is that not inconsistent? The law says, “although a right to
relief against one may be inconsistent with a right against the other.” In other words, even if the
two causes of action is inconsistent with each other, it is allowed.

As a matter of fact, this is the best policy because the plaintiff is a sure winner. The only
question is, who among the two will be held liable.

Although the law is silent, if there is such a thing as “alternative defendants,” there is no reason
why the grounds for “alternative plaintiffs” should not be allowed.

Q: (Taken from Remedial Law Reviewer by Nuevas) May plaintiff join in the alternative?
A: YES, plaintiffs may join in the alternative under the same principle as alternative joinder of
defendants. When several persons are uncertain as to who among them is entitled to relief from a

Property of LAKAS ATENISTA 88

1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

certain defendant, they may join as plaintiffs in the alternative. This is also sanctioned by the rule
on permissive joinder of parties (Pajota vs. Jante, L-6014, Feb. 8, 1955). Thus, the principal and his
agent may join as plaintiffs in the alternative against a defendant. If the agency is proved, the relief
is awarded to the principal. If not, award is then made to the agent.

Sec. 14. Unknown identity or name of defendant. Whenever the identity or

name of a defendant is unknown, he may be sued as the unknown owner, heir,
devisee, or by such other designation as the case may require; when his
identity or true name is discovered, the pleading must be amended accord.
(14)

Q: Can you sue somebody who is unknown?

A: YES, under Section 14.

BAR PROBLEM: While Leyva “The Rapper” was walking on the street. He was bumped by a
car, say a Toyota Altis, 2001 model, color blue. Now, so far, he could not determine who is the
owner. If you are the lawyer of the Leyva, how would you sue the defendant?
A: Under Section, I will sue the owner of that car as an unknown defendant. I can place in my
complaint, “Leyva ‘the rapper’, plaintiff, vs. the registered owner of Honda motor vehicle with plate
number so and so.” And later if you discover the true identity of the owner, we can amend the
complaint to place the name of the defendant.

Section 14 is similar with Rule 110 in Criminal Procedure – a case may be filed against an
unknown accused.

RULE 110, SEC. 7. Name of the accused. – The complaint or information

must state the name and surname of the accused or any appellation or
nickname by which he has been or is known. If his name cannot be
ascertained, he must be described under a fictitious name with a statement
that his true name is unknown.
If the true name of the accused is thereafter disclosed by him or appears
in some other manner to the court, such true name shall be inserted in the
complaint or information and record. (7a)

ENTITY WITHOUT JURIDICAL PERSONALITY AS DEFENDANT

Sec. 15. Entity without juridical personality as defendant. When two or

more persons not organized as an entity with juridical personality enter
into a transaction, they may be sued under the name by which they are
generally or commonly known.
In the answer of such defendant, the names and addresses of the persons
composing said entity must all be revealed.

Rule 1, Section 1 provides that only natural of juridical persons may be sued.

Entity without juridical personality as defendant. Under the old law, this was known as suing
two or more persons involved in a business under a common name. When two or more persons
transact in a business under a common name, they may be sued under their common name.

Q: Who are really the defendants here? A: The persons involved.

Now, it is worded in this manner: “When two or more persons not organized as an entity with
juridical personality,” instead of a ‘common name.’ You cannot sue the entity because it has no
juridical personality. But you do not also know the members of that entity, so the law allows you to
file a case against the entity.

Under the second paragraph of Section 15, when the defendants file an answer, they must file
under their names as they are really the real parties in interest. When the lawyer answers the
complaint, he is duty-bound to provide the names of all the defendants.

Property of LAKAS ATENISTA 89

1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

Q: How do you summon this kind of defendant?

A: Rule 14, Section 8:

RULE 14, Sec. 8. Service upon entity without juridical personality. When
persons associated in an entity without juridical personality are sued under
the name by which they are generally or commonly known, service may be
effected upon all the defendants by serving upon any one of them, or upon
the person in charge of the office or place of business maintained in such
name. But such service shall not bind individually any person whose
connection with the entity has, upon due notice, been severed before the
action was brought. (9a)

Correlate this with Rule 36, Section 6:

Sec. 6. Judgment against entity without juridical personality. When

judgment is rendered against two or more persons sued as an entity without
juridical personality, the judgment shall set out their individual or proper
names, if known. (6a)

GENERAL RULE: actions must be filed against real parties in interest.

EXCEPTIONS: (When may an action be filed without naming all the parties in involved?)

1. Class suit (Section 12, Rule 3);

2. Entity without juridical personality (Section 15, Rule 3);
3. Any co-owners may bring an action for ejectment (Article 487, New Civil Code)

EFFECT OF DEATH OF A PARTY

Sec. 16. 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. Failure of counsel to comply with this
duty shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or administrator
and the court may appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or
representatives to appear and be substituted within a period of thirty (30)
days from notice.
If no legal representative is named by the counsel for the deceased
party, or if the one so named shall fail to appear within the specified
period, the court may order the opposing party, within a specified time, to
procure the appointment of an executor or administrator for the estate of
the deceased and the latter shall immediately appear for and on behalf of
the deceased. The court charges in procuring such appointment, if defrayed
by the opposing party, may be recovered as costs. (16, 17a)

First of all, there are cases when a party to a pending action dies and the claim is not thereby
extinguished (this is what they called an action which survives as we will explain later) and there
are certain actions where if a party dies, the claim is automatically extinguished. Meaning, the
death of a party causes death of the action. But these are very few. Majority of cases when the party
dies, the case or the cause of action continues.

It is the duty of the lawyer of the deceased to inform the court within 30 days after the death of
the party thereof. He must inform the court and give the name and address of his legal
representative/s (e.g. administrator of executor of the estate)

Well of course, under the rule in legal ethics, the lawyer-client relationship is automatically
terminated by the death of the client because the lawyer-client relationship is personal. But

Property of LAKAS ATENISTA 90

1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

procedurally, you must tell the court and you must give the name of the legal representative. The
latter may re-hire the lawyer but under a new contract.

The purpose there is for substitution so that the legal representative will be ordered
substituted. And there is a new provision under the new rules. That is, failure of the counsel to
comply with his duty shall be a ground for disciplinary action. That is not found in the prior rule.
So, the lawyer can be subjected to disciplinary action.

So the provision continues, “the heirs of the deceased may be allowed to be substituted for the
deceased without requiring the appointment of an executor or administrator. And the court may
appoint a guardian ad litem for the minor heirs.

So, other than the legal representative, before anything else, the representative refers to the
executor or administrator, and the other alternative will be the heirs, such as the surviving children,
wife or spouse.

Although there was a case decided by the SC way back in 1986 in the case of

LAWAS vs. COURT OF APPEALS

146 SCRA 173

HELD: “The priority of substitution would be the executor or administrator not the
heirs. The heirs would only be allowed to be substituted if there is an (1) unreasonable
delay in the appointment of administrator or executor, or (2) when the heirs resort to
extrajudicial partition. But outside of those two reason, the law always gives priority to
the administrator or executor.”

Under the rule, priority is given co the legal representative of the deceased. That is, the executor
or the administrator of his estate. Many courts do not enforce it strictly. Normally, patay na, “O! Ito
ang heirs o!” “OK! Substitute!” Actually, that is wrong based on LAWAS case. The priority is given
to the administrator or executor. It is only when there is unreasonable delay in the appointment, or
when the heirs resort to extrajudicial partition because there is no more administrator or executor in
extrajudicial settlement.
VDA. DE SALAZAR vs. COURT OF APPEALS
250 SCRA 303 [November 23, 1995]

FACTS: This is an ejectment. case. The defendant died while the case is going on.
What is the procedure? There should be substitution. But there was no substitution in
the case for ten years, until it was decided. The court was not informed of the death of
the defendant. Until finally, there was a decision.

ISSUE: When there is failure to effectuate the substitution of heirs before the
rendition of judgment, is the judgment jurisdictionally detective? Because here, the case
continued eh, in which somebody is already dead.

HELD: NO, “the judgment is valid where the heirs themselves appeared before the
trial court and participated in the proceedings. Therein, they presented evidence in
defense of the deceased defendant. It is undeniably evident that the heirs themselves
sought their day in court and exercised their right to due process.”

In other words, when there was a defect the heirs however cannot used that because they
themselves appeared and continued the case. So, in effect, there was estoppel.

EFFECT OF DEATH OF A PARTY ON MONEY CLAIMS

Property of LAKAS ATENISTA 91

1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

Now, one of the radical changes again introduced by the new rules is the effect of the death of
the defendant in a money claim – action to collect a sum of money.

Sec. 20. Action on contractual money claims. When the action is for
recovery of money arising from contract, express or implied, and the
defendant dies before entry of final judgment in the court in which the
action was pending at the time of such death, it shall not be dismissed but
shall instead be allowed to continue until entry of final judgment. A
favorable judgment obtained by the plaintiff therein shall be enforced in
the manner especially provided in these Rules for prosecuting claims against
the estate of a deceased person. (21a)

The best example here is an action to collect an unpaid loan. And while the case is pending the
defendant died. What will happen to the case? The law says: If the defendant dies before the entry
of the final judgment in the court at the time of death, it shall not be dismissed but it shall instead
be allowed to continue until entry of final judgment.

Under the OLD RULES, the case shall be dismissed. So, the civil case is not suspended but it
will be dismissed. Eh, paano 'yung utang? Now, you file a case against the estate of the deceased
under the Rules on Special Proceedings. But definitely the civil case hindi na matuloy . . . patay na
iyon when the defendant dies.

Now, under the NEW RULE, the case will not be dismissed but rather, the case will now
continue until entry of final judgment. That is a radical change of procedure! So case will not be
dismissed. It shall be allowed to continue until entry of final judgement. Meaning, until it becomes
final and executory.

Q: But of course, if the judgment is favorable to you (the plaintiff), can you move to execute?
Can you move to execute the decision against or buy the property of the defendant?
A: NO, because the law provides, “xxx a favorable judgment obtained by the plaintiff therein
shall be enforced in the manner specially provided in these Rules for prosecuting claims against the
estate of a deceased person.”

Q: And what is that procedure?

A: YOU FILE A CLAIM against the estate under Section 5, Rule 86 of the Rules of Court, but
there will be no execution.

[Note: SEE OUTLINE AT THE LAST PART OF THIS RULE.]

Q: We are talking of death of a party in a pending civil action. While there is a case and a party
dies, what will happen to the case?
A: I will distinguish – Anong klaseng kaso iyar. Is that an ACTION WHICH DOES NOT
SURVIVE or an ACTION WHICH SURVIVES?

1.) ACTION WHICH DOES NOT SURVIVE

An action which does not survive is an action which is abated upon the death of a party. The
case cannot go on once a party dies. And normally, that refers to actions which are purely
personal in character like an action for annulment of marriages, an action for declaration of the
nullity of marriage or, an action for legal separation, or an action for support. These are the
cases arising from the Family Code.

Example: The husband files a case against the wife for annulment of marriage or
legal separation. One of them dies. Wala nang substitution, TAPOS NA! When one
of the parties dies, the marriage is dissolved. There is nothing to annul because the
marriage is already dissolved. So, these are the actions which are purely personal .

Q: So, what is the effect of the death of the party in actions which does not
survived?
A: The case is dismissed!

Property of LAKAS ATENISTA 92

1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

However, these cases are very few. Majority of the cases are damage suit, recovery of
possession, recovery of land, recovery of unpaid loans, etc. So, these are what you call
actions which survive. Meaning , if a party dies, you cannot say that the case is terminated
upon the death of the party. So, ano ang mga kaso na iyan?

2.) ACTIONS WHICH SURVIVE – Is it a contractual money claim or non-contractual claim? If

it is a contractual claim, who died – is it the plaintiff or is it the defendant? If the defendant
is the one who died, when did he die?

2a.) Actions which survive; CONTRACTUAL MONEY CLAIMS:

2a1.) If it is the plaintiff who dies, the case will continue. The heirs or legal
representatives will proceed. So, there is substitution.

2a2.) If it is the defendant who dies, the question is: KAILAN NAMATAY? Before entry
of final judgment or after entry? This is where Section 20 will come in.

2a2a.) If the defendant died before entry of final judgment, you apply Section 20 of
Rule 3. Meaning, the case shall not be dismissed but shall be allowed to continue until
entry of final judgment. And the favorable judgment obtained by the plaintiff therein
shall be enforced in the manner especially provided in these Rules for prosecuting
claims against the estate of a deceased person, and that is Section 5 of Rule 86.

2a2b.) If the defendant died after the entry of the final judgment but before execution
(after the judgment became final but before there could be levy or execution) you cannot
move to execute. Again, you apply Section 5 of Rule 86 which is the governing rule –
you file your judgment as a claim against the estate of the deceased defendant. [Section
5, Rule 86 - Please refer to your codals.] The purpose there is, so that the creditor will
share with the other creditors pro-rata in the distribution of the estate.

2a2c) If the defendant died after levy or execution but before the auction sale –
meaning, the property was already levied by the sheriff bago pa namatay – we will now
apply Section 7[c] of Rule 39:

Rule 39, Sec. 7. Execution in case of death of party. In case of the

death of party, execution may issue or be enforced in the following
manner:
x x x x x x
(c) In case of the death of the judgment obligor, after execution is
actually levied upon any of his property, the same may be sold for the
satisfaction of the judgment obligation, and the officer making the sale
shall account to the corresponding executor or administrator for any
surplus in his hands. (7a)

Meaning, after the levy, namatay, auction sale proceeds as scheduled. And if there is
an excess, the excess shall be delivered to the administrator of executor.

2b.) Actions which survive; NON-CONTRACTUAL MONEY CLAIMS:

EXAMPLE: an action for recovery of property, real or personal like replevin,
forcible entry, unlawful detainer, action publiciana, action reinvidicatoria, or
action for damages, (damages that is not the same for transaction of money
because damages arising from culpa aquiliana is one not arising from contract.)

If a party dies in an action which survives which is a non-contractual money

claim, obviously, there is substitution of parties. So, what are these non-contractual
money claims which survive? These are those mentioned in Section 7 of Rule 86 and
Section 1 of Rule 87. That is in the study of Special Proceedings on settlement of the
estate of a deceased person.

Property of LAKAS ATENISTA 93

1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

So, that is the outline in the light of the amendments of the Rules of Court. [PLEASE REFER TO
THE OUTLINE HEREIN ATTACHED.]

Note: What Section 20 says is that: before the case can be decided and the defendant dies (in
actions involving money claims) the case shall not be dismissed but shall instead be allowed to
continue until entry of final judgment. BUT CONTINUE AGAINST WHOM? Against the deceased?
Now, to my mind, you correlate this with Section 16 --- there should still be substitution.

But assuming, there was no substitution and the heirs fought in the case; there is waiver
because the defect is procedural. Just like what happened in the case of VDA. DE SALAZAR.
Actually, what Section 20 emphasized is that, the action shall not be dismissed but shall continue –
to emphasize that it is now different compared with the prior RULE. But obviously, there will
always be a substitution

Sec. 17. Death or separation of a party who is a public officer. When a

public officer is a party in an action in his official capacity and during
its pendency dies, resigns, or otherwise ceases to hold office, the action
may be continued and maintained by or against his successor if, within
thirty (30) days after the successor takes office or such time as may be
granted by the court, it is satisfactorily shown to the court by any party
that there is a substantial need for continuing or maintaining it and that
the successor adopts or continues or threatens to adopt or continue the
action of his predecessor. Before a substitution is made, the party or
officer to be affected, unless expressly assenting thereto, shall be given
reasonable notice of the application therefor and accorded an opportunity to
be heard. (18a)

This applies only when the public officer is party to an action in his official capacity. If he (1)
dies; (2) resigns; or (3) cease to hold office, there will be a succession.

Q: What will happen to the case?

A: The following:

1.) If the successor intends to continue with the policy.

EXAMPLE: Mayor Pascua threatened to demolished the building of Mr. Nuere
as a hazard. If Mayor Pascua dies, Vice-Mayor Angeles becomes the mayor. If Vice-
Mayor Angeles who is now the mayor says that he will continue with the
demolition, he will be substituted and he is given 30 days to comment.

2.) If the successor does not adopt the policy, the case will be dismissed.

Sec. 18. Incompetency or incapacity. If a party becomes incompetent or

incapacitated, the court, upon motion with notice, may allow the action to
be continued by or against the incompetent or incapacitated person assisted
by his legal guardian or guardian ad litem. (19a)

EXAMPLE: Francis files a case against Kenneth. While the case is pending, Kenneth becomes
insane. (tsk! tsk!) The case will continue but Kenneth has to be assisted by his guardian ad litem
Thad.

This is related to Rule 3, Section 3 on representative party but in Section 3, Kenneth was already
insane before the case is filed. [inborn na yan eh!]

Sec. 19. Transfer of interest. In case of any transfer of interest, the

action may be continued by or against the original party, unless the court
upon motion directs the person to whom the interest is transferred to be
substituted in the action or joined with the original party. (20)

Property of LAKAS ATENISTA 94

1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

EXAMPLE: Rudolpho files a case against Leweh to recover a piece of land. While the case is
pending, Leweh sold the land to Erec. Erec now assumes the risk and takes the property subject to
the outcome of the case.
Q: Can the case continue against Leweh?
A: YES.
1.) If Leweh loses and cannot pay, Erec is subsidiary liable;
2.) Leweh can be removed and Erec will be substituted; or
3.) Leweh can stay and Erec will be added.

In all 3 cases, Erec will be bound by the judgment.

Sec. 21. Indigent party. A party may be authorized to litigate his

action, claim or defense as an indigent if the court, upon an ex parte
application and hearing, is satisfied that the party is one who has no money
or property sufficient and available for food, shelter and basic necessities
for himself and his family.
Such authority shall include an exemption from payment of docket and
other lawful fees, and of transcripts of stenographic notes which the court
may order to be furnished him. The amount of the docket and other lawful
fees which the indigent was exempted from paying shall be a lien on any
judgment rendered in the case favorable to the indigent, unless the court
otherwise provides.
Any adverse party may contest the grant of such authority at any time
before judgment is rendered by the trial court. If the court should
determine after hearing that the party declared as an indigent is in fact a
person with sufficient income or property, the proper docket and other
lawful fees shall be assessed and collected by the clerk of court. If
payment is not made within the time fixed by the court, execution shall
issue for the payment thereof, without prejudice to such other sanctions as
the court may impose. (22a)

In criminal cases, the court assigns a counsel de officio. Under the Constitution on Bill of Rights,
no person shall be denied access to courts by reason of poverty.

In civil cases, a plaintiff need not pay docket fee if he is an indigent if he files an application (ex-
party application) to allow him to litigate as an indigent litigant. But if the indigent wins, he has to
pay the fees – file now, pay later) – the amount shall be a lien on any favorable judgment.

The third paragraph is new. The other party may contest the claim of the indigent if he is really
an indigent or not.

Sec. 22. Notice to the Solicitor General. In any action involving the
validity of any treaty, law, ordinance, executive order, presidential
decree, rules or regulations, the court, in its discretion, may require the
appearance of the Solicitor General who may be heard in person or through a
representative duly designated by him. (23a)

EXAMPLE: Inday (the love-is-blind club president) files a case against Kenneth Bruce Lim for
declaration of nullity on the ground of psychological incapacity. Kenneth alleges that Article 38 of
the Family Code is unconstitutional. So the court will rule on the validity of the law in which case,
the Solicitor General has to be involved in the case to defend the validity of the law.

REASON: The Solicitor General is the legal counsel of the Republic of the Philippines whose
duty is to defend all the official acts of the Government.


published by

Property of LAKAS ATENISTA 95

1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

LAKAS ATENISTA 1997 – 1998: FOURTH YEAR: Anna Vanessa Angeles • Glenda Buhion •
Joseph Martin Castillo • Aaron Philip Cruz • Pearly Joan Jayagan • Anderson Lo •
Yogie Martirizar • Frecelyn Mejia • Dorothy Montejo • Rowena Panales • Regina Sison •
Ruby Teleron • Marilou Timbol • Maceste Uy • Perla Vicencio • Liberty Wong • Jude Zamora •
Special Thanks to: Marissa Corrales and July Romena

SECOND YEAR: Jonalyn Adiong • Emily Aliño • Karen Allones • Joseph Apao •
Melody Penelope Batu • Gemma Betonio • Rocky Cabarroguis • Charina Cabrera •
Marlon Cascuejo • Mike Castaños • Karen de Leon • Cherry Frondozo • Jude Fuentes • Maila
Ilao • Ilai Llena • Rocky Malaki • Jenny Namoc • Ines Papaya • Jennifer Ramos • Paisal Tanjili

LAKAS ATENISTA 2001–2002: REVISION COMMITTEE: Melissa Suarez • Jessamyn

Agustin • Judee Uy • Janice Joanne Torres • Genie Salvania • Pches Fernandez • Riezl Locsin
•
Kenneth Lim • Charles Concon • Roy Acelar • Francis Ampig • Karen Cacabelos •
Maying Dadula • Hannah Examen • Thea Guadalope • Myra Montecalvo • Paul Ongkingco
• Michael Pito • Rod Quiachon • Maya Quitain • Rina Sacdalan • Lyle Santos •Joshua Tan •
Thaddeus Tuburan • John Vera Cruz • Mortmort

Property of LAKAS ATENISTA 96