THIRD DIVISION VICTORINO QUINAGORAN, G.R. NO. 155179 Vs.

Ca and Heirs of Juan dela cruz August 24, 2007 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the Decision1[1] of the Court Appeals (CA) in CA-GR SP No. 60443 dated May 27, 2002 and its Resolution2[2] dated August 28, 2002, which denied petitioner's Motion for Reconsideration. The factual antecedents. The heirs of Juan dela Cruz, represented by Senen dela Cruz (respondents), filed on October 27, 1994 a Complaint for Recovery of Portion of Registered Land with Compensation and Damages against Victorino Quinagoran (petitioner) before the Regional Trial Court (RTC) Branch XI of Tuao, Cagayan, docketed as Civil Case No. 240-T.3[3] They alleged that they are the coowners of a a parcel of land containing 13,100 sq m located at Centro, Piat, Cagayan, which they inherited from the late Juan dela Cruz;4[4] that in the mid-70s, petitioner started occupying a house on the north-west portion of the property, covering 400 sq m, by tolerance of respondents; that in 1993, they asked petitioner to remove the house as they planned to construct a commercial building on the property; that petitioner refused, claiming ownership over the lot; and that they suffered damages for their failure to use the same.5[5] Respondents prayed for the reconveyance and surrender of the disputed 400 sq m, more or less, and to be paid the amount of P5,000.00 monthly until the property is vacated, attorney's fees in the amount of P20,000.00, costs of suit and other reliefs and remedies just and equitable.6[6]

Petitioner filed a Motion to Dismiss claiming that the RTC has no jurisdiction over the case under Republic Act (R.A.) No. 7691, which expanded the exclusive original jurisdiction of the Municipal Trial Court (MTC) to include all civil actions which involve title to, or possession of, real property, or any interest therein which does not exceed P20,000.00. He argued that since the 346 sq m lot which he owns adjacent to the contested property has an assessed value of P1,730.00, the assessed value of the lot under controversy would not be more than the said amount.7[7] The RTC denied petitioner's Motion to Dismiss in an Order dated November 11, 1999, thus: The Court finds the said motion to be without merit. The present action on the basis of the allegation of the complaint partakes of the nature of action publicciana (sic) and jurisdiction over said action lies with the Regional Trial Court, regardless of the value of the property. This is so because in paragraph 8 of the complaint, it is alleged that the plaintiff demanded from the defendant the removal of the house occupied by the defendant and the possession of which is Only due to Tolerance (sic) of herein plaintiffs WHEREFORE, for lack of merit, the motion to dismiss is hereby denied.8[8] Petitioner's Motion for Reconsideration was also denied by the RTC.9[9] Petitioner then went to the CA on a Petition for Certiorari and Prohibition seeking the annulment of the Orders of the RTC.10[10] On May 27, 2002, the CA rendered the herein assailed Decision dismissing petitioner's action and affirming in toto the RTC.11[11] Pertinent portions of said Decision, read: At the onset, we find that the complaint filed by the Heirs of Juan dela Cruz, represented by Senen dela Cruz adequately set forth the

jurisdictional requirements for a case to be cognizable by the Regional Trial Court. The Complaint is captioned recovery of portion of registered land and it contains the following allegations: 7. That since plaintiffs and defendant were neighbors, the latter being the admitted owner of the adjoining lot, the former's occupancy of said house by defendant was only due to the tolerance of herein plaintiffs; 8. That plaintiffs, in the latter period of 1993, then demanded the removal of the subject house for the purpose of constructing a commercial building and which herein defendant refused and in fact now claims ownership of the portion in which said house stands; 9. That repeated demands relative to the removal of the subject house were hence made but which landed on deaf ears; 10. That a survey of the property as owned by herein plaintiffs clearly establishes that the subject house is occupying Four Hundred (400) square meters thereof at the north-west portion thereof, as per the approved survey plan in the records of the Bureau of Lands. xxxx It is settled that when the complaint fails to aver facts constitutive of forcible entry or unlawful detainer, as where it does not state how entry was effected or how and when dispossession started, the remedy should either be an accion publiciana or an accion reinvindicatoria in the proper regional trial court. In the latter instances, jurisdiction pertains to the Regional Trial Court. As another legal recourse from a simple ejectment case governed by the Revised Rules of Summary Procedure, an accion publiciana is the plenary action to recover the right of possession when dispossession has lasted more than one year or when dispossession was effected by means other than those mentioned in Rule 70 of the Rules of Court. Where there is no allegation that there was denial of possession through any of the methods stated in Section 1, Rule 70 of the Rules of Court, or where there is no lease contract between the parties, the proper

remedy is the plenary action of recovery of possession. Necessarily, the action falls within the jurisdiction of the Regional Trial Court. Thus, we find that the private respondents [heirs of dela Cruz] availed of the proper remedy when they filed the action before the court a quo. Undoubtedly, the respondent court therefore did not act with grave abuse of discretion amounting to or in excess of jurisdiction in denying Quinagoran's Motion to Dismiss and the Motion for Reconsideration, thereof, because it has jurisdiction to hear and decide the instant case. xxxx It would not be amiss to point out that the nature of the action and jurisdiction of courts are determined by the allegations in the complaint. As correctly held by the Regional Trial Court, the present action on the basis of the allegation of the complaint partakes of the nature of action publiciana and jurisdiction over said action lies with the Regional Trial Court regardless of the value of the property. Therefore, we completely agree with the court a quo's conclusion that the complaint filed by the Heirs of Juan dela Cruz, represented by Senen dela Cruz, is in the nature of an accion publiciana and hence it is the Regional Trial Court which has jurisdiction over the action, regardless of the assessed value of the property subject of present controversy.12[12] Petitioner's Motion for Reconsideration was denied on August 28, 2002 for lack of merit.13[13] Petitioner now comes before this Court on a petition for review claiming that under R.A. No. 7691 the jurisdiction of the MTC, Metropolitan Trial Court (MeTC), and Municipal Trial Court in Cities (MTCC) was expanded to include exclusive original jurisdiction over civil actions when the assessed value of the property does not exceed P20,000.00 outside Metro Manila and P50,000.00 within Metro Manila.14[14] He likewise avers that it is an indispensable requirement that the complaint should allege the assessed value of the property involved.15[15] In this case,

the complaint does not allege that the assessed value of the land in question is more than P20,000.00. There was also no tax declaration attached to the complaint to show the assessed value of the property. Respondents therefore failed to allege that the RTC has jurisdiction over the instant case.16[16] The tax declaration covering Lot No. 1807 owned by respondents and where the herein disputed property is purportedly part -- a copy of which petitioner submitted to the CA -- also shows that the value of the property is only P551.00.17[17] Petitioner then prays that the CA Decision and Resolution be annulled and set aside and that the complaint of herein respondents before the trial court be dismissed for lack of jurisdiction.18[18] Respondents contend that: the petition is without factual and legal bases, and the contested decision of the CA is entirely in accordance with law;19[19] nowhere in the body of their complaint before the RTC does it state that the assessed value of the property is below P20,000.00;20[20] the contention of petitioner in his Motion to Dismiss before the RTC that the assessed value of the disputed lot is below P20,000.00 is based on the assessed value of an adjacent property and no documentary proof was shown to support the said allegation;21[21] the tax declaration which petitioner presented, together with his Supplemental Reply before the CA, and on the basis of which he claims that the disputed property's assessed value is only P551.00, should also not be given credence as the said tax declaration reflects the amount of P56,100.00 for the entire property.22[22]

The question posed in the present petition is not complicated, i.e., does the RTC have jurisdiction over all cases of recovery of possession regardless of the value of the property involved? The answer is no. The doctrine on which the RTC anchored its denial of petitioner's Motion to Dismiss, as affirmed by the CA -- that all cases of recovery of possession or accion publiciana lies with the regional trial courts regardless of the value of the property -- no longer holds true. As things now stand, a distinction must be made between those properties the assessed value of which is below P20,000.00, if outside Metro Manila; and P50,000.00, if within. Republic Act No. 769123[23] which amended Batas Pambansa Blg. 12924[24] and which was already in effect25[25] when respondents filed their complaint with the RTC on October 27, 1994,26[26] expressly provides: SEC. 19. Jurisdiction in civil cases Regional Trial Courts shall exercise exclusive original jurisdiction: xxxx (2) In all civil actions which involve the title to or possession of, real property, or any interest therein, where the assessed value of the property involved exceeds Twenty thousand pesos (P20,000.00) or, for civil actions in Metro Manila, where such value exceeds Fifty thousand pesos (P50,000.00) except for forcible entry into and unlawful detainer of lands or buildings, original jurisdiction over which is conferred upon the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts. xxxx SEC. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Civil Cases. --Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise:

xxxx (3) Exclusive original jurisdiction in all civil actions which involve title to, or possession of , real property, or any interest therein where the assessed value of the property or interest therein does not exceed Twenty thousand pesos (P20,000.00) or, in civil actions in Metro Manila, where such assessed value does not exceed Fifty thousand pesos (P50,000.00) exclusive of interest, damages or whatever kind, attorney's fees, litigation expenses and costs: Provided That in cases of land not declared for taxation purposes, the value of such property shall be determined by the assessed value of the adjacent lots.(Emphasis supplied) The Court has also declared that all cases involving title to or possession of real property with an assessed value of less than P20,000.00 if outside Metro Manila, falls under the original jurisdiction of the municipal trial court.27[27] In Atuel v. Valdez28[28] the Court likewise expressly stated that: Jurisdiction over an accion publiciana is vested in a court of general jurisdiction. Specifically, the regional trial court exercises exclusive original jurisdiction in all civil actions which involve x x x possession of real property. However, if the assessed value of the real property involved does not exceed P50,000.00 in Metro Manila, and P20,000.00 outside of Metro Manila, the municipal trial court exercises jurisdiction over actions to recover possession of real property.29[29] That settled, the next point of contention is whether the complaint must allege the assessed value of the property involved. Petitioner maintains that there should be such an allegation, while respondents claim the opposite. In no uncertain terms, the Court has already held that a complaint must allege the assessed value of the real property subject of the complaint or the interest thereon to determine which court has jurisdiction over the action.30[30] This is

because the nature of the action and which court has original and exclusive jurisdiction over the same is determined by the material allegations of the complaint, the type of relief prayed for by the plaintiff and the law in effect when the action is filed, irrespective of whether the plaintiffs are entitled to some or all of the claims asserted therein.31[31] In this case, the complaint denominated as Recovery of Portion of Registered Land with Compensation and Damages, reads: 1. That plaintiffs are the only direct and legitimate heirs of the late Juan dela Cruz, who died intestate on February 3, 1977, and are all residents of Centro, Piat, Cagayan; xxxx 4. That plaintiffs inherited from x x x Juan dela Cruz x x x a certain parcel of land x x x containing an area of 13,111 square meters. 5. That sometime in the mid1960's, a house was erected on the north-west portion of the aforedescribed lot x x x. xxxx 7. That since plaintiffs and defendant were neighbors, the latter being the admitted owner of the adjoining lot, the former's occupancy of said house by defendant was only due to the tolerance of herein plaintiffs; 8. That plaintiffs, in the latter period of 1993, then demanded the removal of the subject house for the purpose of constructing a commercial building and which herein defendant refused and in fact now claims ownership of the portion in which said house stands; 9. That repeated demands relative to the removal of the subject house were hence made but which landed on deaf ears; 10. That a survey of the property as owned by herein plaintiffs clearly establishes that the subject house is occupying Four Hundred (400) square meters thereof at the north-west portion thereof, as per the approved survey plan in the records of the Bureau of Lands.32[32]

Nowhere in said complaint was the assessed value of the subject property ever mentioned. There is therefore no showing on the face of the complaint that the RTC has exclusive jurisdiction over the action of the respondents.33[33] Indeed, absent any allegation in the complaint of the assessed value of the property, it cannot be determined whether the RTC or the MTC has original and exclusive jurisdiction over the petitioner's action.34[34] The courts cannot take judicial notice of the assessed or market value of the land.35[35] Jurisdiction of the court does not depend upon the answer of the defendant or even upon agreement, waiver or acquiescence of the parties.36[36] Indeed, the jurisdiction of the court over the nature of the action and the subject matter thereof cannot be made to depend upon the defenses set up in the court or upon a motion to dismiss for, otherwise, the question of jurisdiction would depend almost entirely on the defendant.37[37] Considering that the respondents failed to allege in their complaint the assessed value of the subject property, the RTC seriously erred in denying the motion to dismiss. Consequently, all proceedings in the RTC are null and void,38[38] and the CA erred in affirming the RTC.39[39] WHEREFORE, the petition is GRANTED. The Court of Appeals's Decision in CA-GR SP No. 60443 dated May 27, 2002 and its Resolution dated August 28, 2002, are REVERSED and SET ASIDE. The Regional Trial Courts Orders dated November 11, 1999 and May 11, 2000, and all proceedings therein are declared NULL and VOID. The complaint in Civil Case No. 240-T is dismissed without prejudice.

No costs. SO ORDERED. G.R. No. 149554 July 1, 2003 SPOUSES JORGE J. HUGUETE and YOLANDA B. HUGUETE, petitioners, vs. SPOUSES TEOFEDO AMARILLO EMBUDO and MARITES HUGUETE-EMBUDO, respondents. YNARES-SANTIAGO, J.: This is a petition for review assailing the Orders dated June 27, 20011 and July 26, 20012 of the Regional Trial Court of Cebu City, Branch 7, in Civil Case No. CEB-24925. On March 2, 2000, petitioner spouses Jorge and Yolanda Huguete instituted against respondent spouses Teofredo Amarillo Embudo and Marites Huguete-Embudo a complaint for "Annulment of TCT No. 99694, Tax Declaration No. 46493, and Deed of Sale, Partition, Damages and Attorneys Fees," docketed as Civil Case No. CEB-24925 of the Regional Trial Court of Cebu City, Branch 7. Petitioners alleged that their son-in-law, respondent Teofredo, sold to them a 50-square meter portion of his 150-square meter parcel of land, known as Lot No. 1920-F-2, situated in San Isidro, Talisay, Cebu, for a consideration of P15,000.00; that Teofredo acquired the lot from Ma. Lourdes Villaber-Padillo by virtue of a deed of sale,3 after which Transfer Certificate of Title No. 99694 was issued solely in his name; that despite demands, Teofredo refused to partition the lot between them. On March 15, 2001, respondents filed a Motion to Dismiss4 the complaint on the ground of lack of jurisdiction over the subject matter of the case, arguing that the total assessed value of the subject land was only P15,000.00 which falls within the exclusive jurisdiction of the Municipal Trial Court, pursuant to Section 33(3)5 of Batas Pambansa Blg. 129, as amended by Republic Act No. 7691.6 Petitioners filed an Opposition to the Motion to Dismiss7 alleging that the subject matter of the action is incapable of pecuniary estimation and, therefore, is cognizable by the Regional Trial Court, as provided by Section 19(1) of B.P. 129, as amended.8 The trial court dismissed the complaint for lack of jurisdiction. Petitioners filed a Motion for Reconsideration,9 which was denied on July 26, 2001. Hence, this petition for review based on the following errors: I THE HONORABLE COURT ERRED IN HOLDING THAT IT HAS NO JURISDICTION OVER THE CASE PURSUANT TO SECTION 33 (3) OF BATAS PAMBANSA BILANG 129 IN UTTER DISREGARD OF SECTION 19 (1) OF THE SAME LAW AS WELL AS SETTLED JURISPRUDENCE ENUNCIATED IN RUSSEL VS. VESTIL, 304 SCRA 738 (MARCH 17, 1999) WHICH, WITH DUE RESPECT, WAS TAKEN OUT OF CONTEXT. II THE HONORABLE COURT COMMITTED AN ERROR IN NOT HOLDING THAT RESPONDENTS WHO SEEK AFFIRMATIVE RELIEF AND THEREBY INVOKE THE AUTHORITY OF THE COURT IN THEIR COUNTERCLAIM ARE ESTOPPED TO DENY THE JURISDICTION OF THE HONORABLE COURT.10 The petition lacks merit. Petitioners maintain that the complaint filed before the Regional Trial Court is for the annulment of deed of sale and partition, and is thus incapable of pecuniary estimation. Respondents, on the other hand, insist that the action is one for annulment of title and since the assessed value of the property as stated in the

complaint is P15,000.00, it falls within the exclusive jurisdiction of the Municipal Trial Court. The pertinent portions of the complaint alleged: 4. Sometime in the year 1995, Teofredo A. Embudo, the son-in-law of plaintiffs offered them portion of Lot No. 1920-F-2, situated in San Isidro, Talisay, Cebu, which defendants bought on installment basis from Ma. Lourdes Villaber-Padillo. Desirous to live near their daughter and grandchildren, they accepted defendants offer. Immediately, plaintiffs paid defendants the sum of FIFTEEN THOUSAND PESOS (P15,000.00) as full consideration and payment of the purchase of 50square meter lot at a price of THREE HUNDRED PESOS (P300.00) per square meter; 5. Happily, plaintiffs built their house on the portion they bought from defendants which is adjacent to defendants house. Plaintiffs were issued Tax Declaration No. 53170 for the house, copy is hereto attached to form part hereof and marked as Annex "A"; 6. Notwithstanding repeated demands for the execution of the Deed of Sale, defendants with insidious machination led plaintiffs to believe that the necessary document of conveyance could not as yet be executed for the reason that they have not yet paid in full their obligation to Ma. Lourdes Villaber-Padillo, the original owner of the lot in question, when in truth and in fact, as plaintiffs came to know later, that the aforesaid defendants were already in possession of a Deed of Sale over the entire lot in litigation in which it appeared that they are the sole buyers of the lot, thusly consolidating their ownership of the entire lot to the exclusion of the plaintiffs. A copy of the Deed of Sale is hereto attached to form part hereof and marked as Annex "B." 7. As a way to further their fraudulent design, defendants secured the issuance of Transfer Certificate of Title No. T-99694 solely in their names on the basis of the Deed of Sale aforementioned (Annex "A" hereof), without the knowledge of the plaintiffs. A copy of the aforesaid Transfer Certificate of Title is hereto attached as an integral part hereof and marked as Annex "C." 8. Since considerable time had already elapsed that defendants had given plaintiffs a run-around, plaintiffs then demanded for the partition of the lot, segregating a portion in which their residential house stands, and despite such demand defendants, without qualm of conscience refused and still refuse to partition the lot; xxx xxx xxx; PRAYER WHEREFORE, premises considered, this Honorable Court is most respectfully prayed to render judgment in favor of plaintiffs and against defendants, ordering 1. Defendants to partition, divide and segregate a portion on which the house of plaintiffs is situated, with an area of Fifty (50) Square Meters; 2. That the Deed of Sale dated December 28, 1995 entered into by and between defendants and the previous owner of the lot in question be annulled and cancelled; 3. The Register of Deeds of the Province of Cebu to annul/cancel Transfer Certificate of Title No. 99694 in the name of the defendants and in lieu thereof directing him to issue Transfer Certificate of Title in favor of plaintiffs for the 50-square meter lot and another Transfer Certificate of Title in favor of defendants for the remaining 100-square meter lot; 4. The Municipal Assessor of Talisay, Cebu to cancel Tax Declaration No. 46493 in the name of the defendants and directing him to issue Tax Declaration in the name

of the defendants for the 50-square meter lot and another Tax Declaration in the name of the plaintiffs for the remaining 100-square meter lot; xxx xxx xxx.11 In Caiza v. Court of Appeals,12 it was held that what determines the nature of an action as well as which court has jurisdiction over it are the allegations of the complaint and the character of the relief sought. Moreover, in Singsong v. Isabela Sawmill,13 we ruled that: In determining whether an action is one the subject matter of which is not capable of pecuniary estimation this Court has adopted the criterion of first ascertaining the nature of the principal action or remedy sought. If it is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and whether the jurisdiction is in the municipal courts or in the courts of first instance would depend on the amount of the claim. However, where the basic issue is something other than the right to recover a sum of money, where the money claim is purely incidental to, or a consequence of, the principal relief sought, this Court has considered such actions as cases where the subject of the litigation may not be estimated in terms of money, and are cognizable exclusively by courts of first instance (now Regional Trial Courts). The reliance of the petitioners on the case of Russell v. Vestil14 is misplaced. In the said case, petitioners sought the annulment of the document entitled, "Declaration of Heirs and Deed of Confirmation of Previous Oral Partition," whereby respondents declared themselves as the only heirs of the late Spouses Casimero and Cesaria Tautho to the exclusion of petitioners. Petitioners brought the action in order for them to be recognized as heirs in the partition of the property of the deceased. It was held that the action to annul the said deed was incapable of pecuniary estimation and the consequent annulment of title and partition of the property was merely incidental to the main action. Indeed, it was also ruled in said case: While actions under Section. 33(3) of B.P. 129 are also incapable of pecuniary estimation, the law specifically mandates that they are cognizable by the MTC, METC, or MCTC where the assessed value of the real property involved does not exceed P20,000.00 in Metro Manila, or P50,000.00, if located elsewhere. x x x.15 In the case at bar, the principal purpose of petitioners in filing the complaint was to secure title to the 50-square meter portion of the property which they purchased from respondents. Petitioners cause of action is based on their right as purchaser of the 50-square meter portion of the land from respondents. They pray that they be declared owners of the property sold. Thus, their complaint involved title to real property or any interest therein. The alleged value of the land which they purchased was P15,000.00, which was within the jurisdiction of Municipal Trial Court. The annulment of the deed of sale between Ma. Lourdes Villaber-Padillo and respondents, as well as of TCT No. 99694, were prayed for in the complaint because they were necessary before the lot may be partitioned and the 50-square meter portion subject thereof may be conveyed to petitioners. Petitioners argument that the present action is one incapable of pecuniary estimation considering that it is for annulment of deed of sale and partition is not well-taken. As stated above, the nature of an action is not determined by what is stated in the caption of the complaint but by the allegations of the complaint and the reliefs prayed for. Where, as in this case, the ultimate objective of the plaintiffs is to obtain title to real property, it should be filed in the proper court having jurisdiction over the assessed value of the property subject thereof. WHEREFORE, in view of the foregoing, the instant petition for review is DENIED. The Order dated June 27, 2001 of the Regional

Trial Court of Cebu City, Branch 7, dismissing Civil Case No. CEB24925, and its Order dated July 26, 2001 denying petitioners Motion for Reconsideration, are AFFIRMED. SO ORDERED. G.R. No. L-34314 May 13, 1975 SOFIA PASTOR DE MIDGELY, petitioner, vs. THE HONORABLE PIO B. FERANDOS, Judge of the Court of First Instance of Cebu, Branch IX and LEWELYN BARLITO QUEMADA, Special Administrator of the Testate and Intestate Estate of ALVARO PASTOR Y TATO, respondents. Abelardo P. Cecilio for petitioner. Efipanio A. Anoos for private respondents. AQUINO, J.:+.wph!1 Sofia Pastor de Midgely, a British subject residing at Cura Planelles, 10 Cura Jardin, Alicante, Spain, filed this special civil action of certiorari against Judge Pio B. Ferandos and Lewelyn Barlito Quemada in order to set aside the Judge's order dated May 8, 1971 which denied her motion to dismiss based on lack of jurisdiction and on article 222 of the Civil Code. She prayed for a declaration that the Court of First Instance of Cebu, Toledo City, Branch IX has no jurisdiction over her person and properties and for the dismissal of the complaint against her in Civil Case No. 274-T of that court. The ultimate facts found in the prolix pleadings are as follows: Alvaro Pastor, Sr., a Spanish citizen, was allegedly the owner of properties and rights in mining claims located in Cebu and supposedly held in trust by his son, Alvaro Pastor, Jr., and his daughter-in-law, Maria Elena Achaval-Pastor. Pastor, Sr. died on June 5, 1966. He was survived by his wife, Sofia Pastor y Bossio (who died on October 21, 1966) and by his two legitimate children, Mrs. Midgely and Alvaro Pastor, Jr. Respondent Quemada claims to be his illegitimate child. Alvaro Pastor, Sr. in his supposed holographic will dated July 31, 1961 devised to Lewelyn Barlito Quemada thirty percent of his forty-two percent share in certain mining claims and real properties. In 1970 the alleged will was presented for probate in Special Proceedings No. 3128-R assigned to Branch I in Cebu City of the Court of First Instance of Cebu. Quemada was appointed special administrator of the decedent's estate. As such administrator and as heir of Alvaro Pastor, Sr., Quemada filed in the Court of First Instance of Cebu at Toledo City a complaint dated December 7, 1970 against the spouses Alvaro Pastor, Jr. and Maria Elena Achaval, Mrs. Midgely, Atlas Consolidated Mining and Development Corporation and Caltex (Philippines), Inc. to settle the question of ownership over certain real properties and the rights in some mining claims, to obtain an accounting and payment of the royalties and income thereof and for the payment of damages amounting to P25,000. Quemada's theory is that those properties and income belong to the estate of Alvaro Pastor, Sr. Allegedly without complying with the requirements of Rule 14 of the Rules of Court, Quemada caused extraterritorial service of summons to be made in that case through the Department of Foreign Affairs and the Philippine Embassy in Madrid, Spain, which effected the service of the summons by registered mail upon Mrs. Midgely and the Pastor, Jr. spouses at their respective address in Alicante and Barcelona, Spain. Alvaro Pastor, Jr. and Mrs. Midgely, in their respective letters to the Philippine Embassy dated February 11 and 12, 1971, acknowledged the service of summons but reserved the right to contest the courts jurisdiction over their persons. The MinisterCounselor of the Embassy forwarded those letters to the Clerk of Court and apprised him of the manner the summons was served. Through counsel, Mrs. Midgely and the Pastor, Jr. spouses entered a special appearance and filed a motion to dismiss on the ground of lack of jurisdiction. They contended that as

nonresidents they could be summoned only with leave of court and that the requirements laid down in section 17 of Rule 14 should have been observed. As additional, ground they alleged that the complaint does not show that earnest efforts toward a compromise have been made, as required in article 222 of the Civil Code in suits between members of the same family (See sec. 1[j], Rule 16, Rules of Court). Quemada opposed the motion to dismiss. As already stated, Judge Ferandos denied the motion. He ruled that Mrs. Midgely and the Pastor, Jr. spouses had been properly summoned. He opined that article 222 was inapplicable to the case because Quemada's civil status was involved and article 2035 of the Civil Code prohibits a compromise on a person's civil status. He gave Mrs. Midgely and the Pastor, Jr. spouses seventy days from February 12, 1971 within which to file their answer, deducting from that period the time from March 10 to May 8, 1971 when their motion to dismiss was pending. Mrs. Midgely's motion for reconsideration of the order denying her motion to dismiss was denied by Judge Ferandos in his order of September 27, 1971 wherein he ruled that the action filed by Quemada was for the recovery of real properties and real rights. He gave Mrs. Midgely and the Pastor, Jr. spouses sixty days from notice within which to answer the complaint and directed that a copy of his order be sent to them through the Philippine Embassy in Madrid. The petition for certiorari herein was filed on November 3, 1971. It was given due course. Respondent Quemada in his answer alleged that inasmuch as his action against Mrs. Midgely concerns property located here in which she claims an interest, it is not necessary that jurisdiction over her person be acquired. The service of summons upon her was not for the purpose of acquiring jurisdiction over her person but merely as a matter of due process. Quemada alleged that as administrator he has been in actual possession of two parcels of land owned by Alvaro Pastor, Jr. located at Biga, Toledo City with areas of 55.3 hectares and 5,225 square meters, respectively. They were included in the inventory submitted by him to the probate court in the testate proceeding for his putative father's estate. His answer contains annexes attesting to his efforts to recover possession of the other properties of the decedent. In the meantime the spouses Alvaro Pastor, Jr. and Maria Elena Achaval filed a verified answer to the complaint in Civil Case No. 274-T dated December 5, 1971. Their answer was filed through the same counsel who has been representing Mrs. Midgely. The said spouses-alleged that they were not waiving their defense of lack of jurisdiction over their persons and over the subject matter of the action. They claimed to be the owners of the properties described in the complaint. It should be noted that in the testate proceeding Mrs. Midgely and Alvaro Pastor, Jr. had filed a verified opposition dated January 26, 1971. They prayed for the dismissal of the proceeding. (The holographic will was probated in the lower court's order of December 5, 1972 which was appealed to the Court of Appeals by Mrs. Midgely and Alvaro Pastor, Jr., CA-G.R. No. 52961-R). On May 10, 1972, this Court issued a writ of preliminary injunction suspending all proceedings in Civil Case No. 274-T. Contempt incident. That writ of preliminary injunction spawned the contempt incident in this case. Mrs. Midgely in a motion dated March 26, 1974 charged that Quemada committed "unlawful interference of the case under injunction" and tried to circumvent the writ (1) by taking possession of two parcels of land in Toledo City and (2) by asking the probate court to stop Altas Consolidated Mining and Development Corporation from remitting to Mrs. Midgely and the Pastor, Jr. spouses the landowner's share of the income from the Toledo City properties, with the result that the probate court ordered the payment of said income to Quemada.

Quemada in his opposition to the motion countered that he had maintained the status quo in Civil Case No. 274-T, as decreed in the writ of preliminary injunction; that the overseer delivered in 1971 the possession of the two parcels of land to him in his capacity as administrator or before the issuance of the writ, and that the order of Judge Juan Y. Reyes in Special Proceedings No. 3128-R did not constitute an interference with Civil Case No. 274T which was assigned to Judge Ferandos. Quemada through counsel filed a counter-charge for contempt against Abelardo Cecilio, the counsel of Mrs. Midgely, for having made false and malicious statements in his motion to declare Quemada in contempt of court. Quemada was referring to Atty. Cecilio's allegations that the writ of preliminary injunction was intended to prevent Quemada from taking possession of the properties involved in Civil Case No. 274-T and that, notwithstanding the writ, he took possession of the aforementioned two parcels of land. Quemada in his memorandum further charged Cecilio with purporting to represent Alvaro Pastor, Jr. in this case although the latter is not a party herein. Quemada branded the acts of Cecilio as misbehavior of an officer of the court and as improper conduct tending to degrade and obstruct the administration of justice. Quemada later manifested that he had turned over to Atty. Cecilio the two checks for the land-owner's share of the income from the Toledo City properties. The contempt charges were investigated by the Legal Officer of this Court. After going over the record, we find that both contempt charges are devoid of merit. The writ issued by this Court enjoined Judge Ferandos and Quemada "from holding hearings, trial and proceedings and/or from further proceeding with Civil Case No. 274-T". It froze the case. It was a preventive injunction. The undisputed fact is that in February, 1971 Quemada as administrator was already in possession of the two parcels of land in Toledo City. The fact that he continued to remain in possession after the injunction was issued on May 10, 1972 (Exh. 16) was not a violation of the injunction which was not mandatory in character. As to the attempt of Quemada in Special Proceeding No. 3128-R in his capacity as administrator to get hold of the land-owner's share of the income derived from the properties involved in Civil Case No. 274-T, it is apparent that he did so in good faith and on the advice of his lawyer who actually filed the necessary motion. The probate at first upheld his right to receive that income. Later he complied with the court's order to turn over the checks to the counsel of Alvaro Pastor, Jr. Inasmuch as that incident transpired in the testamentary proceeding and as Quemada committed the alleged contemptuous act through his counsel, the same cannot be properly characterized as a willful interference with the injunction issued by this Court in Civil Case No. 274-T. On the other hand, Atty. Cecilio's free-wheeling allegations in his motion to declare Quemada in contempt of court, which averments were tailored to support his notion that Quemada circumvented the injunction, may be viewed simply as a manifestation of a lawyer's propensity to slant the presentation of his client's case so that it would appear to be meritorious. Such a tactic is generally tolerated by understanding judges. They are not deceived by the exaggerations and distortions in a counsel's lopsided submission of his client's case especially where, as in this case, the alert opposing counsel calls the court's attention to that fact. "Contempt of court presupposes a contumacious attitude, a flouting or arrogant belligerence, a defiance of the court" (Matutina vs. Judge Buslon and the Sheriff of Surigao, 109 Phil. 140, 142). It is an offense against the authority and dignity of the court. That is not true in this case. The contempt charges should be dismissed.

The certiorari case. The petitioner injected into this case issues which involve the merits of Quemada's action for reconveyance of certain properties and which are not germane to the instant certiorari action. Those issues will be resolved by the lower court in the main case. The only legal issue to be resolved is whether Judge Ferandos gravely abused his discretion in denying Mrs. Midgely's motion to dismiss based on the grounds of (a) lack of jurisdiction over her person and (b) lack of a showing that earnest efforts were exerted to effect a compromise. The said order is interlocutory. It could eventually be reviewed in the appeal in the main case. While this Court generally does not entertain a petition for certiorari questioning the propriety of an interlocutory order, yet when a grave abuse of discretion has been patently committed, or the lower court has acted capriciously and whimsically, then it devolves upon this Court to exercise its supervisory authority and to correct the error committed (Manila Electric Co. and Sheriff of Quezon City vs. Hon. Enriquez, etc. and Espinosa, 110 Phil. 499, 503; Abad Santos vs. Province of Tarlac, 67 Phil. 480). We are of the opinion that the lower court has acquired jurisdiction over the person of Mrs. Midgely by reason of her voluntary appearance. The reservation in her motion to dismiss that she was making a special appearance to contest the court's jurisdiction over her person may be disregarded. It may be disregarded because it was nullified by the fact that in her motion to dismiss she relied not only on the ground of lack of jurisdiction over the person but also on the ground that there was no showing that earnest efforts were exerted to compromise the case and because she prayed "for such other relief as" may be deemed "appropriate and proper". Thus, it was held that where the defendant corporation (which was not properly summoned because the summons was served upon its lawyer) filed a motion to dismiss on the ground of lack of jurisdiction over its person but in the same motion it prayed for the dismissal of the complaint on the ground of prescription, it was held that, by invoking prescription, it necessarily admitted the court's jurisdiction upon its, person and, therefore, it was deemed to have abandoned its special appearance and voluntarily submitted itself to the court's jurisdiction (Republic vs. Ker & Co., Ltd., 64 O. G. 3761, 18 SCRA 207, 213-214 citing Flores vs. Zurbito, 37 Phil. 746 and Menghra vs. Tarachand and Rewachand, 67 Phil. 286). "When the appearance is by motion for the purpose of objecting to the jurisdiction of the court over the person, it must be for the sole and separate purpose of objecting to the jurisdiction of the court. If his motion is for any other purpose than to object to the jurisdiction of the court over his person, he thereby submits himself to the jurisdiction of the court. A special appearance by motion made for the purpose of objecting to the jurisdiction of the court over the person will be held to be a general appearance, if the party in said motion should, for example, ask for a dismissal of the action upon the further ground that the court had no jurisdiction over the subject matter." (Syllabus, Flores vs. Zurbito, supra, at page 751. That rule was followed in Ocampo vs. Mina and Arejola, 41 Phil. 308). Where the defendant contended that the court did not acquire jurisdiction over his person by means of the publication of the corresponding summons in Hawaii, where he was residing, because the action did not relate to personal or real properties situated in the Philippines in which the defendant had or claimed a lien or interest, actual or contingent, it was held that the said defendant nevertheless submitted to the court's jurisdiction when he filed a motion wherein he contested the court's jurisdiction over his person and at the same time prayed that he be relieved from the effects of the judgment by default, attaching to his motion an affidavit of merits. "He thereby impliedly waived his special appearance assailing the jurisdiction of the court over

his person, and voluntarily submitted to the jurisdiction of said court." (Menghra vs. Tarachand and Rewachand, supra. See Tenchavez vs. Escao, L-19671, September 14, 1966, 17 SCRA 684 and Sharruf vs. Bubla, L-17029, September 30, 1964, 12 SCRA 79 where it was held that a non-resident alien, by filing his complaint in a Philippine court, submits thereby to its jurisdiction and the court acquires jurisdiction over him even if as a matter of fact he had never been able to enter the Philippines). Having shown that Mrs. Midgely had voluntarily submitted to the lower court's jurisdiction when she filed her motion to dismiss (see sec. 23, Rule 14, Rules of Court), the inevitable conclusion is that it did not commit any grave abuse of discretion in denying her motion to dismiss. In petitioner's lengthy memorandum and reply she confined her arguments to the jurisdictional issue. She even argued that the lower court does not have jurisdiction over the res, a contention that is palpably baseless. She did not discuss the second ground of her motion to dismiss, which is non-compliance with the requirement of article 222 of the Civil Code on compromise of intra-family disputes. She was presumably convinced by the lower court's argument that such a compromise would violate the prohibition in article 2035 of the Civil Code against compromise on a person's civil status (See De Raquiza vs. Castellvi, L-17630, October 31, 1963, 9 SCRA 395). The case may be viewed from another angle. Supposing arguendo that the lower court did not acquire jurisdiction over the person of Mrs. Midgely, still her motion to dismiss was properly denied because Quemada's action against her may be regarded as a quasi in rem action where jurisdiction over the person of the nonresident defendant is not necessary and where service of summons is required only for the purpose of complying with the requirement of due process (Perkins vs. Dizon, 69 Phil. 186; Banco Espaol-Filipino vs. Palanca, 37 Phil. 921; Mabanag vs. Gallemore, 81 Phil. 254). An action quasi in rem is an action between parties where the direct object is to reach and dispose of property owned by them, or of some interest therein (1 Am Jur 2nd 574; State ex rel. South Brevard Drainage Dist. vs. Smith, 170 So. 440, 126 Fla. 72). Quemada's action falls within that category. With respect to the extraterritorial service of summons to a nonresident defendant like Mrs. Midgely, Rule 14 of the Rules of Court provides:t.hqw SEC. 17. Extraterritorial service. When the defendant does not reside and is not found in the Philippines and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 7; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer.

Under section 17, extraterritorial service of summons is proper (1) when the action affects the personal status of the plaintiff; (2) when the action relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent; (3) when the relief demanded in such an action consists, wholly or in part, in excluding the defendant from any interest in property located in the Philippines, and (4) when defendant nonresident's property has been attached within the Philippines (Sec. 17, Rule 14, Rules of Court). In any of such four cases, the service of summons may, with leave of court, be effected out of the Philippines in three ways: (1) by personal service; (2) by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court should be sent by registered mail to the last known address of the defendant, and (3) service of summons may be effected in any other manner which the court may deem sufficient. That third mode of extraterritorial service of summons was substantially complied with in this case. In Civil Case No. 274-T the subject matter of the action for reconveyance consists of properties of Alvaro Pastor, Sr. which are located in Cebu. Mrs. Midgely claims an actual interest in those properties. She has been receiving a share of the income therefrom. Therefore, the extraterritorial service of summons upon her was proper. As already noted, the action against her is quasi in rem. (See Brown vs. Brown, 113 Phil. 442). The record does not show whether Judge Ferandos was consulted by the Clerk of Court and by Quemada's counsel when the service of summons was effected through the Philippine Embassy in Madrid. But although there was no court order allowing service in that manner, that mode of service was later sanctioned or ratified by Judge Ferandos in his order of May 8, 1971. In another order he corrected the defect in the summons by giving Mrs. Midgely the sixty-day reglementary period for answering the complaint. In the Banco Espaol-Filipino case, supra, the failure of the clerk of court, in a case of foreclosure of a mortgage executed by a nonresident defendant (which is an action quasi in rem) to mail to the defendant's last place of residence copies of the summons and complaint, as required in section 399 of Act 190 (now section 17 of Rule 14) was held not to have affected the court's jurisdiction over the res. In the Perkins case, supra, Eugene Arthur Perkins sued in the Court of First Instance of Manila the Benguet Consolidated Mining Company, a domestic firm, together with Idonah Slade Perkins and George Engelhard, two nonresidents, who were summoned by publication. The service of summons was based on section 398 of Act 190 (from which section 17 of Rule 14 was partly taken) which provides that service of summons by publication may be made on a nonresident in "an action which relates to, or the subject of which is, real or personal property within the Islands, in which such person defendant or foreign corporation defendant, has or claims a lien or interest, actual or contingent, or in which the relief demanded consists wholly or in part in excluding such person or foreign corporation from any interest therein." Eugene Arthur Perkins in his complaint prayed that Engelhard and Idonah Slade Perkins, "be adjudged without interest" in certain shares of stock of the Benguet Consolidated Mining Company and be excluded from any claim involving such shares. Idonah Slade Perkins challenged the court's jurisdiction over her person. Judge Arsenio P. Dizon overruled her objection. She filed in this Court a certiorari proceeding wherein she prayed that the summons by publication issued against her be declared void and that Judge Dizon be permanently prohibited from taking any action in the case.

This Court held that the action filed by Eugene Arthur Perkins against the two non-residents was a quasi in rem action and not an action in personam. In that action plaintiff Perkins sought to exclude Idonah Slade Perkins from any interest in property located in the Philippines consisting shares of stock in a domestic sociedad anomina. This Court clarified that in a quasi in rem action jurisdiction over the person of the nonresident defendant is not essential. The service of summons by publication is required "merely to satisfy the constitutional requirement of due process". The judgment of the court in the case would settle the title to the shares of stock and to that extent it partakes of the nature of a judgment in rem. Consequently, the lower court had jurisdiction to try the case even if it had not acquired jurisdiction over the person of Idonah Slade Perkins. The judgment would be confined to the res. No personal judgment could be rendered against the non-resident. Other considerations may be adduced to indicate the frivolous character of Mrs. Midgely's petition for certiorari. There is the circumstance that she actually received the summons and a copy of the complaint. Thus, she cannot complain that she was unaware of the action against her. The requirement of due process has been satisfied. She is cognizant not only of Quemada's complaint in Civil Case No. 274-T in Branch IX of the Court of First Instance of Cebu at Toledo City but also of the testamentary proceeding instituted earlier by Quemada for the settlement of the estate of Alvaro Pastor, Sr. in the Cebu City Branch I of the Court of First Instance of Cebu. In that proceeding she and her brother, Alvaro Pastor, Jr., through her counsel in this case, submitted to the court's jurisdiction by filing an opposition to Quemada's petition. It should be noted that Civil Case No. 274-T is related to the testamentary proceeding (which is a proceeding in rem par excellance) because the former case was filed by Quemada for the purpose of recovering the properties which, according to his understanding, belong to the estate of Alvaro Pastor, Sr. and which are held by Mrs. Midgely and the spouses Alvaro Pastor, Jr. and Maria Elena Achaval. WHEREFORE, the contempt charges and the petition for certiorari are dismissed. Costs against the petitioner. SO ORDERED.