SECOND DIVISION

[G.R. No. 92326. January 24, 1992.]

REPUBLIC OF THE PHILIPPINES, petitioner,
vs. COURT OF APPEALS and ZENAIDA C.
BOBILES, respondents.
The Solicitor General for petitioner.
Mariano B. Miranda for private respondent.
SYLLABUS
1. CIVIL LAW; FAMILY CODE; RETROSPECTIVE
APPLICATION NOT TO PREJUDICE OR IMPAIR
VESTED OR ACQUIRED RIGHTS. Article 246
of the Family Code provides for retroactive effect
of appropriate relevant provisions thereof, subject
to the qualification that such retrospective
application will not prejudice or impair vested or
acquired rights in accordance with the Civil Code
or other laws.
2. ID.; EFFECT AND APPLICATION OF LAWS;
VESTED RIGHT, EXPLAINED. A vested right
is one whose existence, effectivity and extent
does not depend upon events foreign to the will
of the holder. The term expresses the concept of
present fixed interest which in right reason and
natural justice should be protected against
arbitrary State action, or an innately just and
imperative right which enlightened free society,
sensitive to inherent and irrefragable individual
rights, cannot deny. Vested rights include not only
legal or equitable title to the enforcement of a
demand, but also an exemption from new
obligations created after the right has vested.
3.
REMEDIAL
LAW;
ADOPTION
PROCEEDINGS; CHILD AND YOUTH WELFARE
CODE;
RIGHT
THEREUNDER
TO
FILE
PETITION FOR ADOPTION ALONE CANNOT BE
PREJUDICED BY THE ENACTMENT OF NEW
LAW. Under the Child and Youth Welfare Code,
private respondent had the right to file a petition
for adoption by herself, without joining her
husband therein. When Mrs. Bobiles filed her
petition, she was exercising her explicit and
unconditional right under said law. Upon her filing
thereof, her right to file such petition alone and to
have the same proceed to final adjudication, in
accordance with the law in force at the time, was
already vested and cannot be prejudiced or
impaired by the enactment of a new law. When
private respondent filed her petition in Special
Proceeding No. 1386, the trial court acquired
jurisdiction thereover in accordance with the
governing law. Jurisdiction being a matter of
substantive law, the established rule is that the
jurisdiction of the court is determined by the
statute in force at the time of the commencement
of the action. We do not find in the present case
such facts as would constitute it as an exception
to the rule.
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4. ID.; ID.; PROCEDURAL STATUTES MAY BE

ORDINARILY
BE
ACCORDED
A
RETROSPECTIVE
CONSTRUCTION;
EXCEPTION. The first error assigned by
petitioner warrants a review of applicable local
and foreign jurisprudence. For that purpose, we
start with the premise that Article 185 of the
Family Code is remedial in nature. Procedural
statutes are ordinarily accorded a retrospective
construction in the sense that they may be
applied to pending actions and proceedings, as
well as to future actions. However, they will not
be so applied as to defeat procedural steps
completed before their enactment. Procedural
matters are governed by the law in force when
they arise, and procedural statutes are generally
retroactive in that they apply to pending
proceedings and are not confined to those begun
after their enactment although, with respect to
such pending proceedings, they affect only
procedural steps taken after their enactment. The
rule that a statutory change in matters of
procedure will affect pending actions and
proceedings, unless the language of the act
excludes them from its operation, is not so
extensive that it may be used to validate or
invalidate proceedings taken before it goes into
effect, since procedure must be governed by the
law regulating it at the time the question of
procedure arises.
5. ID.; ID.; JURISDICTION; DETERMINED BY
THE STATUTE IN FORCE AT THE TIME OF THE
COMMENCEMENT OF THE ACTION. The
jurisdictional, as distinguished from the purely
procedural, aspect of a case is substantive in
nature and is subject to a more stringent rule. A
petition cannot be dismissed by reason of failure
to comply with a law which was not yet in force
and effect at the time. As long as the petition for
adoption was sufficient in form and substance in
accordance with the law in governance at the
time it was filed, the court acquires jurisdiction
and retains it until it fully disposes of the case. To
repeat, the jurisdiction of the court is determined
by the statute in force at the time of the
commencement of the action. Such jurisdiction of
a court, whether in criminal or civil cases, once it
attaches cannot be ousted by subsequent
happenings or events, although of a character
which would have prevented jurisdiction from
attaching in the first instance.
6. ID.; ID.; WRITTEN CONSENT AND
CONFIRMATORY STATEMENT SUFFICIENT TO
MAKE HUSBAND A CO-PETITIONER.
Although Dioscoro Bobiles was not named as one
of the petitioners in the petition for adoption filed
by his wife, his affidavit of consent, attached to

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the petition as Annex "B" and expressly made an

integral part thereof, shows that he himself
actually joined his wife in adopting the child. The
declarations in his written consent and his
subsequent confirmatory testimony in open court,
are sufficient to make him a co-petitioner. Under
the circumstances then obtaining, and by reason
of his foreign residence, he must have yielded to
the legal advice that an affidavit of consent on his
part sufficed to make him a party to the petition.
This is evident from the text of his affidavit.
Punctiliousness in language and pedantry in the
formal requirements should yield to and be
eschewed in the higher considerations of
substantial justice. The future of an innocent child
must not be compromised by arbitrary insistence
of rigid adherence to procedural rules on the form
of pleadings.
7. ID.; ID.; ADOPTION STATUTES AND
PROCEDURES
THEREFORE
SHOULD
BE
LIBERALLY CONSTRUED. We see no reason
why the following doctrines in American law
should not apply to this case and, for that matter,
in our jurisdiction. It is a settled rule therein that
adoption statutes, as well as matters of
procedure leading up to adoption, should be
liberally construed to carry out the beneficent
purposes of the adoption institution and to
protect the adopted child in the rights and
privileges coming to it as a result of the adoption.
The modern tendency of the courts is to hold that
there need not be more than a substantial
compliance with statutory requirements to
sustain the validity of the proceeding; to refuse
would be to indulge in such a narrow and
technical construction of the statute as to defeat
its intention and beneficial results or to invalidate
proceedings where every material requirement of
the statute was complied with.
8. ID.; ID.; COURTS TO UPHOLD ACTS IN
SUBSTANTIAL COMPLIANCE WITH STATUTES.
In support of this rule it is said that it is not the
duty of the courts to bring the judicial microscope
to bear upon the case in order that every slight
defect may be enlarged and magnified so that a
reason may be found for declaring invalid an act
consummated years before, but rather to
approach the case with the inclination to uphold
such acts if it is found that there was a
substantial compliance with the statute. The
technical rules of pleading should not be
stringently applied to adoption proceedings, and
it is deemed more important that the petition
should contain facts relating to the child and its
parents, which may give information to those
interested, than that it should be formally correct
as a pleading. Accordingly, it is generally held
that a petition will confer jurisdiction if it
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substantially complies with the adoption statute,

alleging all facts necessary to give the court
jurisdiction.
9. ID.; ID.; DISCRETION OF COURT MUST BE
EXERCISED IN THE BEST INTEREST OF THE
CHILD. In determining whether or not to set
aside the decree of adoption the interests and
welfare of the child are of primary and paramount
consideration. The welfare of a child is of
paramount consideration in proceedings involving
its custody and the propriety of its adoption by
another, and the courts to which the application
for adoption is made is charged with the duty of
protecting the child and its interests and, to bring
those interests fully before it, it has authority to
make rules to accomplish that end. Ordinarily, the
approval of the adoption rests in the sound
discretion of the court. This discretion should be
exercised in accordance with the best interests of
the child, as long as the natural rights of the
parents over the child are not disregarded. In the
absence of a showing of grave abuse, the
exercise of this discretion by the approving
official will not be disturbed.
10. ID.; ID.; OBJECTIVES OF ADOPTION
STATUTES. Adoption statutes, being humane
and salutary, hold the interests and welfare of the
child to be of paramount consideration. They are
designed to provide homes, parental care and
education for unfortunate, needy or orphaned
children and give them the protection of society
and family in the person of the adopted, as well
as to allow childless couples or persons to
experience the joys of parenthood and give them
legally a child in the person of the adopted for the
manifestation of their natural parental instincts.
Every reasonable intendment should be sustained
to promote and fulfill these noble and
compassionate objectives of the law.
DECISION
REGALADO, J p:
Dissatisfied with the decision of respondent Court
of Appeals promulgated on February 20, 1990 1
which affirmed in toto the decision of Branch 2 of
the Regional Trial Court of Legaspi City 2 granting
the petition of herein private respondent to adopt
the minor Jason Condat, petitioner seeks the
reversal thereof in the present petition for review
on certiorari.
On February 2, 1988, Zenaida Corteza Bobiles
filed a petition to adopt Jason Condat, then six (6)
years old and who had been living with her family
since he was four (4) months old, before the
Regional Trial Court of Legaspi City, docketed
therein as Special Proceeding No. 1386. 3

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The court a quo, finding the petition to be

sufficient in form and substance, issued an order
dated February 15, 1988 setting the petition for
hearing on March 28, 1988. 4 The order was duly
published, with copies thereof seasonably served
on the Solicitor General; Assistant Provincial
Fiscal Mediavillo, Jr. of Albay; Salvador Condat,
father of the child; and the social worker assigned
to the court. A copy of said order was posted on
the bulletin board of the court and in the other
places it had required for that purpose. Nobody
appeared to oppose the petition. 5
Compliance with the jurisdictional requirements
having been proved at the hearing, the
testimonies of herein private respondent,
together with that of her husband, Dioscoro
Bobiles, and one Ma. Luz Salameno of the
Department of Social Welfare and Development
were taken and admitted in the proceedings.
On March 20, 1988, the trial court rendered
judgment disposing as follows:
ACCORDINGLY, it is declared that henceforth, the
minor child, JASON CONDAT, be freed from all
legal obligations of obedience and maintenance
with respect to his natural parents, and be, to all
intents and purposes, the child of the spouses
Dioscoro and Zenaida Bobiles, and the surname
of the child be changed to "Bobiles" which is the
surname of the petitioner.
Furnish the Office of the Solicitor General, Manila,
the
Department
of
Social
Welfare
and
Development, Regional Office, Region V, Legaspi
City, and the Local Civil Registrar of Tiwi, Albay,
with copies of this decision. 6
Herein petitioner appealed to the Court of
Appeals which, as earlier stated, affirmed the
aforesaid decision of the court below. Hence, this
present petition with the following assignment of
errors:

1988, when the law applicable was Presidential

Decree No. 603, the Child and Youth Welfare
Code. Under said code, a petition for adoption
may be filed by either of the spouses or by both
of them. However, after the trial court rendered
its decision and while the case was pending on
appeal in the Court of Appeals, Executive Order
No. 209, the Family Code, took effect on August
3, 1988. Under the said new law, joint adoption
by husband and wife is mandatory.
On the foregoing consideration, petitioner
contends that the petition for adoption should be
dismissed outright as it was filed solely by private
respondent without joining her husband, in
violation of Article 185 of the Family Code which
requires joint adoption by the spouses. It argues
that the Family Code must be applied
retroactively to the petition filed by Mrs. Bobiles,
as the latter did not acquire a vested right to
adopt Jason Condat by the mere filing of her
petition for adoption. We are not persuaded.
Preliminarily, we observe that petitioner's theory
implies that the non-inclusion of Dioscoro Bobiles
as a co-petitioner is a jurisdictional defect, hence
its prayer for an outright dismissal on that score.
It could not be taking exception only on the
ground of non-joinder since petitioner must be
aware that non-joinder is not a ground for the
dismissal of an action or a special proceeding. 8
We further apprehend that this objection has
been raised for the first time on appeal in
respondent court. Nonetheless, we shall clarify
petitioner's misgivings as postulated in its
aforestated assignment of errors.
Article 246 of the Family Code provides for
retroactive
effect of appropriate
relevant
provisions thereof, subject to the qualification
that such retrospective application will not
prejudice or impair vested or acquired rights in
accordance with the Civil Code or other laws.

2. The Honorable Court of Appeals erred in

affirming the trial court's decision which granted
the petition to adopt Jason Condat in favor of
spouses Dioscoro Bobiles and Zenaida C. Bobiles.
7

A vested right is one whose existence, effectivity

and extent does not depend upon events foreign
to the will of the holder. 9 The term expresses the
concept of present fixed interest which in right
reason and natural justice should be protected
against arbitrary State action, or an innately just
and imperative right which enlightened free
society, sensitive to inherent and irrefragable
individual rights, cannot deny. 10 Vested rights
include not only legal or equitable title to the
enforcement of a demand, but also an exemption
from new obligations created after the right has
vested. 11

The petition for adoption was filed by private

respondent Zenaida C. Bobiles on February 2,

Under the Child and Youth Welfare Code, private

respondent had the right to file a petition for

1. The Honorable Court of Appeals erred in ruling

that the Family Code cannot be applied
retroactively to the petition for adoption filed by
Zenaida C. Bobiles; and

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adoption by herself, without joining her husband

therein. When Mrs. Bobiles filed her petition, she
was exercising her explicit and unconditional right
under said law. Upon her filing thereof, her right
to file such petition alone and to have the same
proceed to final adjudication, in accordance with
the law in force at the time, was already vested
and cannot be prejudiced or impaired by the
enactment of a new law.
When private respondent filed her petition in
Special Proceeding No. 1386, the trial court
acquired jurisdiction thereover in accordance with
the governing law. Jurisdiction being a matter of
substantive law, the established rule is that the
jurisdiction of the court is determined by the
statute in force at the time of the commencement
of the action. 12 We do not find in the present
case such facts as would constitute it as an
exception to the rule.
The first error assigned by petitioner warrants a
review
of
applicable
local
and
foreign
jurisprudence. For that purpose, we start with the
premise that Article 185 of the Family Code is
remedial in nature. Procedural statutes are
ordinarily accorded a retrospective construction
in the sense that they may be applied to pending
actions and proceedings, as well as to future
actions. However, they will not be so applied as
to defeat procedural steps completed before their
enactment. 13
Procedural matters are governed by the law in
force when they arise, and procedural statutes
are generally retroactive in that they apply to
pending proceedings and are not confined to
those begun after their enactment although, with
respect to such pending proceedings, they affect
only
procedural
steps
taken
after
their
enactment. 14
The rule that a statutory change in matters of
procedure will affect pending actions and
proceedings, unless the language of the act
excludes them from its operation, is not so
extensive that it may be used to validate or
invalidate proceedings taken before it goes into
effect, since procedure must be governed by the
law regulating it at the time the question of
procedure arises. 15
The jurisdictional, as distinguished from the
purely procedural, aspect of a case is substantive
in nature and is subject to a more stringent rule.
A petition cannot be dismissed by reason of
failure to comply with a law which was not yet in
force and effect at the time. As long as the
petition for adoption was sufficient in form and
substance in accordance with the law in
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governance at the time it was filed, the court

acquires jurisdiction and retains it until it fully
disposes of the case. 16 To repeat, the jurisdiction
of the court is determined by the statute in force
at the time of the commencement of the action.
Such jurisdiction of a court, whether in criminal or
civil cases, once it attaches cannot be ousted by
subsequent happenings or events, although of a
character
which
would
have
prevented
jurisdiction from attaching in the first instance. 17
On the second issue, petitioner argues that, even
assuming that the Family Code should not apply
retroactively, the Court of Appeals should have
modified the trial court's decision by granting the
adoption in favor of private respondent Zenaida
C. Bobiles only, her husband not being a
petitioner. We do not consider this as a tenable
position and, accordingly, reject the same.
Although Dioscoro Bobiles was not named as one
of the petitioners in the petition for adoption filed
by his wife, his affidavit of consent, attached to
the petition as Annex "B" and expressly made an
integral part thereof, shows that he himself
actually joined his wife in adopting the child. The
pertinent parts of his written consent read as
follows:
xxx xxx xxx
2. That my wife, ZENAIDA O. CORTEZA BOBILES
and I mutually desire to adopt as our child, a boy
named JASON CONDAT, still a minor being six (6)
years old, likewise residing at 18 C. Imperial
Street, Legaspi City, Albay, also in the Philippines;
3. That we are filing the corresponding Petition for
Adoption of said minor child, JASON CONDAT,
before the Juvenile and Domestic Relations court,
now the Regional Trial Court in Legaspi City, Albay
in the Philippines;
4. That I, Dioscoro C. Bobiles as the husband and
father, am giving my lawful consent to this
adoption of said minor child, JASON CONDAT;
5. That further, my wife ZENAIDA O. CORTEZA
BOBILES, and I have continuously reared and
cared for this minor child, JASON CONDAT since
birth;
6. That as a result thereof, my wife and I have
developed a kind of maternal and paternal love
for the boy as our very own, exercising therein
the care, concern and diligence of a good father
toward him;
7. That I am executing this document, an
AFFIDAVIT OF CONSENT for whatever it is worth in
the premises as to the matter of adoption of this

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minor child, JASON CONDAT, by my wife ZENAIDA

O. CORTEZA BOBILES and by me, DIOSCORO C.
BOBILES, in any court of justice; (Emphasis
supplied.) 18
xxx xxx xxx
The foregoing declarations, and his subsequent
confirmatory testimony in open court, are
sufficient to make him a co-petitioner. Under the
circumstances then obtaining, and by reason of
his foreign residence, he must have yielded to the
legal advice that an affidavit of consent on his
part sufficed to make him a party to the petition.
This is evident from the text of his affidavit.
Punctiliousness in language and pedantry in the
formal requirements should yield to and be
eschewed in the higher considerations of
substantial justice. The future of an innocent child
must not be compromised by arbitrary insistence
of rigid adherence to procedural rules on the form
of pleadings.
We see no reason why the following doctrines in
American law should not apply to this case and,
for that matter, in our jurisdiction. It is a settled
rule therein that adoption statutes, as well as
matters of procedure leading up to adoption,
should be liberally construed to carry out the
beneficent purposes of the adoption institution
and to protect the adopted child in the rights and
privileges coming to it as a result of the adoption.
19 The modern tendency of the courts is to hold
that there need not be more than a substantial
compliance with statutory requirements to
sustain the validity of the proceeding; to refuse
would be to indulge in such a narrow and
technical construction of the statute as to defeat
its intention and beneficial results or to invalidate
proceedings where every material requirement of
the statute was complied with.
In support of this rule it is said that it is not the
duty of the courts to bring the judicial microscope
to bear upon the case in order that every slight
defect may be enlarged and magnified so that a
reason may be found for declaring invalid an act
consummated years before, but rather to
approach the case with the inclination to uphold
such acts if it is found that there was a
substantial compliance with the statute. 20 The
technical rules of pleading should not be
stringently applied to adoption proceedings, and
it is deemed more important that the petition
should contain facts relating to the child and its
parents, which may give information to those
interested, than that it should be formally correct
as a pleading. Accordingly, it is generally held
that a petition will confer jurisdiction if it
substantially complies with the adoption statute,
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or

Domestic

alleging all facts necessary to give the court

jurisdiction. 21
In determining whether or not to set aside the
decree of adoption the interests and welfare of
the child are of primary and paramount
consideration. 22 The welfare of a child is of
paramount consideration in proceedings involving
its custody and the propriety of its adoption by
another, and the courts to which the application
for adoption is made is charged with the duty of
protecting the child and its interests and, to bring
those interests fully before it, it has authority to
make rules to accomplish that end. 23 Ordinarily,
the approval of the adoption rests in the sound
discretion of the court. This discretion should be
exercised in accordance with the best interests of
the child, as long as the natural rights of the
parents over the child are not disregarded. In the
absence of a showing of grave abuse, the
exercise of this discretion by the approving
official will not be disturbed. 24
In the case at bar, the rights concomitant to and
conferred by the decree of adoption will be for
the best interests of the child. His adoption is with
the consent of his natural parents. 25 The
representative of the Department of Social
Welfare
and
Development
unqualifiedly
recommended the approval of the petition for
adoption 26 and the trial court dispensed with the
trial custody for several commendatory reasons,
especially since the child had been living with the
adopting parents since infancy. 27 Further, the
said petition was with the sworn written consent
of the children of the adopters.
The trial court and respondent court acted
correctly in granting the petition for adoption and
we find no reason to disturb the same. As found
and aptly stated by respondent court: "Given the
facts and circumstances of the case and
considered in the light of the foregoing doctrine,
28 We are of the opinion and so hold that the
decree of adoption issued by the court a quo
would go a long way towards promoting the
welfare of the child and the enhancement of his
opportunities for a useful and happy life" 29
Adoption statutes, being humane and salutary,
hold the interests and welfare of the child to be of
paramount consideration. They are designed to
provide homes, parental care and education for
unfortunate, needy or orphaned children and give
them the protection of society and family in the
person of the adopted, as well as to allow
childless couples or persons to experience the
joys of parenthood and give them legally a child
in the person of the adopted for the manifestation
of their natural parental instincts. Every

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reasonable intendment should be sustained to

promote
and
fulfill
these
noble
and
compassionate objectives of the law. 30
WHEREFORE,
DENIED.

the

instant

petition

is

hereby

SO ORDERED.
Melencio-Herrera, Paras, Padilla and Nocon, JJ .,
concur.
THIRD DIVISION
[G.R. No. 85044. June 3, 1992.]
MACARIO TAMARGO, CELSO TAMARGO and
AURELIA TAMARGO, petitioners, vs. THE HON.
COURT OF APPEALS; THE HON. ARISTON L.
RUBIO, RTC Judge, Branch 20, Vigan, Ilocos Sur;
VICTOR BUNDOC; and CLARA BUNDOC,
respondents.
SYLLABUS
1. REMEDIAL LAW; CIVIL ACTIONS; MOTION
FOR RECONSIDERATION; CONSIDERED PRO
FORMA WHERE NOTICE OF TIME AND PLACE
OF HEARING NOT CONTAINED THEREIN. It
will be recalled that petitioners' motion (and
supplemental motion) for reconsideration filed
before the trial court, not having complied with
the requirements of Section 13, Rule 41, and
Section 4, Rule 15, of the Revised Rules of Court,
were considered pro forma and hence did not
interrupt and suspend the reglementary period to
appeal: the trial court held that the motions, not
having contained a notice of time and place of
hearing, had become useless pieces of paper
which did not interrupt the reglementary period.
As in fact repeatedly held by this Court, what is
mandatory is the service of the motion on the
opposing counsel indicating the time and place of
hearing.
2. ID.; SUPREME COURT; SUSPENSION OF
APPLICATION
OF
TECHNICAL
RULES
EXERCISED IN CASE AT BAR. In view,
however, of the nature of the issue raised in the
instant Petition, and in order that substantial
justice may be served, the Court, invoking its
right to suspend the application of technical rules
to prevent manifest injustice, elects to treat the
notice of appeal as having been seasonably filed
before the trial court, and the motion (and
supplemental motion) for reconsideration filed by
petitioner in the trial court as having interrupted
the reglementary period for appeal. (Gregorio v.
Court of Appeals, 72 SCRA 120 [1978])
3. CIVIL LAW; TORTS; DOCTRINE OF
"IMPUTED NEGLIGENCE" OR VICARIOUS
LIABILITY, CONSTRUED. It is not disputed
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that Adelberto Bundoc's voluntary act of shooting

Jennifer Tamargo with an air rifle gave rise to a
cause of action on quasi-delict against him.
(Article 2176 of the Civil Code) Upon the other
hand, the law imposes civil liability upon the
father and, in case of his death or incapacity, the
mother, for any damages that may be caused by
a minor child who lives with them. (Article 2180
of the Civil Code) This principle of parental
liability is a species of what is frequently
designated as vicarious liability, or the doctrine of
"imputed negligence" under Anglo-American tort
law, where a person is not only liable for torts
committed by himself, but also for torts
committed by others with whom he has a certain
relationship and for whom he is responsible.
Thus, parental liability is made a natural or logical
consequence of the duties and responsibilities of
parents their parental authority which
includes
the
instructing,
controlling
and
disciplining of the child.
4. ID.; ID.; ID.; BASIS. The civil liability
imposed upon parents for the torts of their minor
children living with them, may be seen to be
based upon the parental authority vested by the
Civil Code upon such parents. The civil law
assumes that when an unemancipated child living
with its parents commits a tortious act, the
parents were negligent in the performance of
their legal and natural duty closely to supervise
the child who is in their custody and control.
Parental liability is, in other words, anchored upon
parental authority coupled with presumed
parental dereliction in the discharge of the duties
accompanying such authority. (Cangco v. Manila
Railroad Co., 36 Phil. 768 [1918])
5. ID.; ID.; ID.; ID.; PARENTAL DERELICTION,
ONLY A PRESUMPTION. The parental
dereliction is, of course, only presumed and the
presumption can be overturned under Article
2180 of the Civil Code by proof that the parents
had exercised all the diligence of a good father of
a family to prevent the damage.
6. REMEDIAL LAW; CIVIL ACTIONS; PARTIES;
PARENTS WHO HAD ACTUAL CUSTODY OF
MINOR, INDISPENSABLE PARTIES TO ACTION
FOR DAMAGES BASED ON TORT. In the
instant case, the shooting of Jennifer by Adelberto
with an air rifle occurred when parental authority
was still lodged in respondent Bundoc spouses,
the natural parents of the minor Adelberto. It
would thus follow that the natural parents who
had then actual custody of the minor Adelberto,
are the indispensable parties to the suit for
damages.

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7. CIVIL LAW; TORTS; DOCTRINE OF

"IMPUTED NEGLIGENCE" OR VICARIOUS
LIABILITY; EFFECT OF ADOPTION THEREON;
CASE AT BAR. We do not believe that parental
authority is properly regarded as having been
retroactively transferred to and vested in the
adopting parents, the Rapisura spouses, at the
time the air rifle shooting happened. We do not
consider that retroactive effect may be given to
the decree of adoption so as to impose a liability
upon the adopting parents accruing at a time
when the adopting parents had no actual or
physical custody over the adopted child.
Retroactive effect may perhaps be given to the
granting of the petition for adoption where such
is essential to permit the accrual of some benefit
or advantage in favor of the adopted child. In the
instant case, however, to hold that parental
authority had been retroactively lodged in the
Rapisura spouses so as to burden them with
liability for a tortious act that they could not have
foreseen and which they could not have
prevented (since they were at the time in the
United States and had no physical custody over
the child Adelberto) would be unfair and
unconscionable. Such a result, moreover, would
be inconsistent with the philosophical and policy
basis underlying the doctrine of vicarious liability.
Put a little differently, no presumption of parental
dereliction on the part of the adopting parents,
the Rapisura spouses, could have arisen since
Adelberto was not in fact subject to their control
at the time the tort was committed.
8. REMEDIAL LAW; SPECIAL CIVIL ACTION;
CERTIORARI; DISMISSAL OF COMPLAINT WHERE
INDISPENSABLE PARTIES ARE ALREADY BEFORE
THE COURT CONSTITUTES GRAVE ABUSE OF
DISCRETION. Under Article 35 of the Child and
Youth Welfare Code, parental authority is
provisionally vested in the adopting parents
during the period of trial custody, i.e., before the
issuance of a decree of adoption, precisely
because the adopting parents are given actual
custody of the child during such trial period. In
the instant case, the trial custody period either
had not yet begun or had already been
completed at the time of the air rifle shooting; in
any case, actual custody of Adelberto was then
with his natural parents, not the adopting
parents.
Accordingly,
we
conclude
that
respondent Bundoc spouses, Adelberto's natural
parents, were indispensable parties to the suit for
damages brought by petitioners, and that the
dismissal by the trial court of petitioners'
complaint, the indispensable parties being
already before the court, constituted grave abuse
of discretion amounting to lack or excess of
jurisdiction.
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DECISION
FELICIANO, J p:
On 20 October 1982, Adelberto Bundoc, then a
minor of 10 years of age, shot Jennifer Tamargo
with an air rifle causing injuries which resulted in
her death. Accordingly, a civil complaint for
damages was filed with the Regional Trial Court,
Branch 20, Vigan, Ilocos Sur, docketed as Civil
Case No. 3457-V, by Petitioner Macario Tamargo,
Jennifer's adopting parent, and petitioner spouses
Celso and Aurelia Tamargo, Jennifer's natural
parents, against respondent spouses Victor and
Clara Bundoc, Adelberto's natural parents with
whom he was living at the time of the tragic
incident. In addition to this case for damages, a
criminal information for Homicide through
Reckless Imprudence was filed [Criminal Case No.
1722-V] against Adelberto Bundoc. Adelberto,
however, was acquitted and exempted from
criminal liability on the ground that he had acted
without discernment.
Prior to the incident, or on 10 December 1981,
the spouses Sabas and Felisa Rapisura had filed a
petition to adopt the minor Adelberto Bundoc in
Special Proceedings No. 0373-T before the then
Court of First Instance of Ilocos Sur. This petition
for adoption was granted on 18 November 1982,
that is, after Adelberto had shot and killed
Jennifer.
In their Answer, respondent spouses Bundoc,
Adelberto's natural parents, reciting the result of
the foregoing petition for adoption, claimed that
not they, but rather the adopting parents, namely
the spouses Sabas and Felisa Rapisura, were
indispensable parties to the action since parental
authority had shifted to the adopting parents
from the moment the successful petition for
adoption was filed.
Petitioners in their Reply contended that since
Adelberto Bundoc was then actually living with
his natural parents, parental authority had not
ceased nor been relinquished by the mere filing
and granting of a petition for adoption.
The trial court on 3 December 1987 dismissed
petitioners' complaint, ruling that respondent
natural parents of Adelberto indeed were not
indispensable parties to the action.
Petitioners received a copy of the trial court's
Decision on 7 December 1987. Within the 15-day
reglementary period, or on 14 December 1987,
petitioners filed a motion for reconsideration
followed by a supplemental motion for
reconsideration on 15 January 1988. It appearing,
however, that the motions failed to comply with
Sections 4 and 5 of Rule 15 of the Revised Rules

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of Court that notice of the motion shall be

given to all parties concerned at least three (3)
days before the hearing of said motion; and that
said notice shall state the time and place of
hearing both motions were denied by the trial
court in an Order dated 18 April 1988. On 28 April
1988, petitioners filed a notice of appeal. In its
Order dated 6 June 1988, the trial court dismissed
the notice of appeal, this time ruling that the
notice had been filed beyond the 15-day
reglementary period ending 22 December 1987.
Petitioners went to the Court of Appeals on a
petition for mandamus and certiorari questioning
the trial court's Decision dated 3 December 1987
and the Orders dated 18 April 1988 and 6 June
1988. The Court of Appeals dismissed the
petition, ruling that petitioners had lost their right
to appeal.

In the present Petition for Review, petitioners

once again contend that respondent spouses
Bundoc are the indispensable parties to the
action for damages caused by the acts of their
minor child, Adelberto Bundoc. Resolution of this
Petition hinges on the following issues: (1)
whether or not petitioners, notwithstanding loss
of their right to appeal, may still file the instant
Petition; conversely, whether the Court may still
take cognizance of the case even though
petitioners' appeal had been filed out of time;
and (2) whether or not the effects of adoption,
insofar as parental authority is concerned, may
be given retroactive effect so as to make the
adopting parents the indispensable parties in a
damage case filed against their adopted child, for
acts committed by the latter when actual custody
was yet lodged with the biological parents.
1. It will be recalled that petitioners' motion (and
supplemental motion) for reconsideration filed
before the trial court, not having complied with
the requirements of Section 13, Rule 41, and
Section 4, Rule 15, of the Revised Rules of Court,
were considered pro forma and hence did not
interrupt and suspend the reglementary period to
appeal: the trial court held that the motions, not
having contained a notice of time and place of
hearing, had become useless pieces of paper
which did not interrupt the reglementary period.
1 As in fact repeatedly held by this Court, what is
mandatory is the service of the motion on the
opposing counsel indicating the time and place of
hearing. 2
In view, however, of the nature of the issue raised
in the instant Petition, and in order that
substantial justice may be served, the Court,
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invoking its right to suspend the application of

technical rules to prevent manifest injustice,
elects to treat the notice of appeal as having
been seasonably filed before the trial court, and
the motion (and supplemental motion) for
reconsideration filed by petitioner in the trial
court as having interrupted the reglementary
period for appeal. As the Court held in Gregorio v.
Court of Appeals: 3
"Dismissal of appeal purely on technical grounds
is frowned upon where the policy of the courts is
to encourage hearings of appeal on their merits.
The rules of procedure ought not be applied in a
very rigid technical sense, rules of procedure are
used only to help secure not override, substantial
justice. If a technical and rigid enforcement of the
rules is made, their aim would be defeated." 4
2. It is not disputed that Adelberto Bundoc's
voluntary act of shooting Jennifer Tamargo with
an air rifle gave rise to a cause of action on quasidelict against him. As Article 2176 of the Civil
Code provides:
"Whoever by act or omission causes damage to
another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual
relation between the parties, is called a quasidelict . . . ."
Upon the other hand, the law imposes civil
liability upon the father and, in case of his death
or incapacity, the mother, for any damages that
may be caused by a minor child who lives with
them. Article 2180 of the Civil Code reads:
"The obligation imposed by article 2176 is
demandable not only for one's own acts or
omissions, but also for those of persons for whom
one is responsible.
The father and, in case of his death or incapacity,
the mother, are responsible for the damages
caused by the minor children who live in their
company. cdll
xxx xxx xxx
The responsibility treated of in this Article shall
cease when the person herein mentioned prove
that they observed all the diligence of a good
father of a family to prevent damage." (Emphasis
supplied)
This principle of parental liability is a species of
what is frequently designated as vicarious
liability, or the doctrine of "imputed negligence"

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under Anglo-American tort law, where a person is

not only liable for torts committed by himself, but
also for torts committed by others with whom he
has a certain relationship and for whom he is
responsible. Thus, parental liability is made a
natural or logical consequence of the duties and
responsibilities of parents their parental
authority which includes the instructing,
controlling and disciplining of the child. 5 The
basis for the doctrine of vicarious liability was
explained by the Court in Cangco v. Manila
Railroad Co. 6 in the following terms:
"With respect to extra-contractual obligation
arising from negligence, whether of act or
omission, it is competent for the legislature to
elect and our Legislature has so elected to
limit such liability to cases in which the person
upon whom such an obligation is imposed is
morally culpable or, on the contrary, for reasons
of public policy, to extend that liability, without
regard to the lack of moral culpability, so as to
include responsibility for the negligence of those
persons whose acts or omissions are imputable,
by a legal fiction, to others who are in a position
to exercise an absolute or limited control over
them. The legislature which adopted our Civil
Code has elected to limit extra-contractual
liability with certain well-defined exceptions
to cases in which moral culpability can be directly
imputed to the persons to be charged. This moral
responsibility may consist in having failed to
exercise due care in one's own acts, or in having
failed to exercise due care in the selection and
control of one's agents or servants, or in the
control of persons who, by reasons of their status,
occupy a position of dependency with respect to
the person made liable for their conduct." 7
(Emphasis supplied)
The civil liability imposed upon parents for the
torts of their minor children living with them, may
be seen to be based upon the parental authority
vested by the Civil Code upon such parents. The
civil law assumes that when an unemancipated
child living with its parents commits a tortious
act, the parents were negligent in the
performance of their legal and natural duty
closely to supervise the child who is in their
custody and control. Parental liability is, in other
words, anchored upon parental authority coupled
with presumed parental dereliction in the
discharge of the duties accompanying such
authority. The parental dereliction is, of course,
only presumed and the presumption can be
overturned under Article 2180 of the Civil Code
by proof that the parents had exercised all the
diligence of a good father of a family to prevent
the damage.
In the instant case, the shooting of Jennifer by
Adelberto with an air rifle occurred when parental
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authority was still lodged in respondent Bundoc

spouses, the natural parents of the minor
Adelberto. It would thus follow that the natural
parents who had then actual custody of the minor
Adelberto, are the indispensable parties to the
suit for damages.
The natural parents of Adelberto, however,
stoutly maintain that because a decree of
adoption was issued by the adoption court in
favor of the Rapisura spouses, parental authority
was vested in the latter as adopting parents as of
the time of the filing the petition for adoption that
is, before Adelberto had shot Jennifer with an air
rifle. The Bundoc spouses contend that they were
therefore free of any parental responsibility for
Adelberto's allegedly tortious conduct.
Respondent Bundoc spouses rely on Article 36 of
the Child and Youth Welfare Code 8 which reads
as follows: LLjur
"Article 36. Decree of Adoption. If, after
considering the report of the Department of
Social Welfare or duly licensed child placement
agency and the evidence submitted before it, the
court is satisfied that the petitioner is qualified to
maintain, care for, and educate the child, that the
trial custody period has been completed, and that
the best interests of the child will be promoted by
the adoption, a decree of adoption shall be
entered, which shall be effective as of the date
the original petition was filed. The decree shall
state the name by which the child is thenceforth
to be known." (Emphasis supplied).
The Bundoc spouses further argue that the above
Article 36 should be read in relation to Article 39
of the same Code:
"Art. 39. Effect of Adoption. The adoption shall:
xxx xxx xxx
(2) Dissolve the authority vested in the natural
parents, except where the adopter is the spouse
of the surviving natural parent;"
xxx xxx xxx
(Emphasis supplied)
and urge that their parental authority must be
deemed to have been dissolved as of the time
the petition for adoption was filed.
The Court is not persuaded. As earlier noted,
under the Civil Code, the basis of parental liability
for the torts of a minor child is the relationship
existing between the parents and the minor child
living with them and over whom, the law
presumes, the parents exercise supervision and

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control. Article 58 of the Child and Youth Welfare

Code, re-enacted this rule:
"Article 58. Torts Parents and guardians are
responsible for the damage caused by the child
under their parental authority in accordance with
the Civil Code." (Emphasis supplied).
Article 221 of the Family Code of the Philippines 9
has similarly insisted upon the requisite that the
child, doer of the tortious act, shall have been in
the actual custody of the parents sought to be
held liable for the ensuing damage:
"Art. 221. Parents and other persons exercising
parental authority shall be civilly liable for the
injuries and damages caused by the acts or
omissions of their unemancipated children living
in their company and under their parental
authority subject to the appropriate defenses
provided by law." (Emphasis supplied)
We do not believe that parental authority is
properly regarded as having been retroactively
transferred to and vested in the adopting parents,
the Rapisura spouses, at the time the air rifle
shooting happened. We do not consider that
retroactive effect may be given to the decree of
adoption so as to impose a liability upon the
adopting parents accruing at a time when the
adopting parents had no actual or physical
custody over the adopted child. Retroactive effect
may perhaps be given to the granting of the
petition for adoption where such is essential to
permit the accrual of some benefit or advantage
in favor of the adopted child. In the instant case,
however, to hold that parental authority had been
retroactively lodged in the Rapisura spouses so as
to burden them with liability for a tortious act that
they could not have foreseen and which they
could not have prevented (since they were at the
time in the United States and had no physical
custody over the child Adelberto) would be unfair
and unconscionable. Such a result, moreover,
would be inconsistent with the philosophical and
policy basis underlying the doctrine of vicarious
liability. Put a little differently, no presumption of
parental dereliction on the part of the adopting
parents, the Rapisura spouses, could have arisen
since Adelberto was not in fact subject to their
control at the time the tort was committed.

Article 35 of the Child and Youth Welfare Code

fortifies the conclusion reached above. Article 35
provides as follows:
"Art. 35. Trial Custody. No Petition for adoption
shall be finally granted unless and until the
adopting parents are given by the courts a
supervised trial custody period of at least six
months to assess their adjustment and emotional
readiness for the legal union. During the period of
trial custody, parental authority shall be vested in
the adopting parents." (Emphasis supplied)
Under the above Article 35, parental authority is
provisionally vested in the adopting parents
during the period of trial custody, i.e., before the
issuance of a decree of adoption, precisely
because the adopting parents are given actual
custody of the child during such trial period. In
the instant case, the trial custody period either
had not yet begun or had already been
completed at the time of the air rifle shooting; in
any case, actual custody of Adelberto was then
with his natural parents, not the adopting
parents. llcd
Accordingly, we conclude that respondent Bundoc
spouses, Adelberto's natural parents, were
indispensable parties to the suit for damages
brought by petitioners, and that the dismissal by
the trial court of petitioners' complaint, the
indispensable parties being already before the
court, constituted grave abuse of discretion
amounting to lack or excess of jurisdiction.
WHEREFORE, premises considered, the Petition
for Review is hereby GRANTED DUE COURSE and
the Decision of the Court of Appeals dated 6
September 1988, in C.A.-G.R. No. SP-15016 is
hereby REVERSED and SET ASIDE. Petitioners'
complaint filed before the trial court is hereby
REINSTATED and this case is REMANDED to that
court for further proceedings consistent with this
Decision. Costs against respondent Bundoc
spouses. This Decision is immediately executory.
SO ORDERED.
Gutierrez, Jr., Bidin, Davide, Jr. and Romero, JJ.,
concur.
||| (Tamargo v. Court of Appeals, G.R. No. 85044,
June 03, 1992)

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