De Asis vs.

CA
GR No. 127578, February 15, 1999
FACTS:
Vircel Andres as legal guardian of Glen Camil Andres de Asis, filed an action in 1988 for
maintenance and support against the alleged father Manuel De Asis who failed to provide
support and maintenance despite repeated demands. Vircel later on withdrew the
complaint in 1989 for the reason that Manuel denied paternity of the said minor and due
to such denial, it seems useless to pursue the said action. They mutually agreed to move
for the dismissal of the complaint with the condition that Manuel will not pursue his
counter claim. However in 1995, Vircel filed a similar complaint against the alleged father,
this time as the minors legal guardian/mother. Manuel interposed maxim of res judicata
for the dismissal of the case. He maintained that since the obligation to give support is
based on existence of paternity between the child and putative parent, lack thereof
negates the right to claim support.
ISSUE: WON the minor is barred from action for support.
HELD: The right to give support cannot be renounced nor can it be transmitted to a third
person. The original agreement between the parties to dismiss the initial complaint was in
the nature of a compromise regarding future support, which is prohibited by law. With
respect to Manuels contention for the lack of filial relationship between him and the child
and agreement of Vircel in not pursuing the original claim, the Court held that existence of
lack thereof of any filial relationship between parties was not a matter which the parties
must decide but should be decided by the Court itself. While it is true that in order to
claim support, filiation or paternity must be first shown between the parties, but the
presence or lack thereof must be judicially established and declaration is vested in the
Court. It cannot be left to the will or agreement of the parties. Hence, the first dismissal
cannot bar the filing of another action asking for the same relief (no force and effect).
Furthermore, the defense of res judicata claimed by Manuel was untenable since future
support cannot be the subject of any compromise or waiver.

G.R. No. L-61549 May 27, 1985

FRANCISCO DE ASIS & CO., INC., FRANCISCO DE ASIS and LEOCADIO DE ASIS,
petitioners, vs.THE COURT OF APPEALS, and MERCEDES PRIETO DELGADO,
respondents.
Cruz, Durian, Agabin, Atienza & Alday for petitioners.
Efren C. Carag for private respondent.
RELOVA, J:
In this petition for review on certiorari, petitioners seek to reverse and/or modify the
decision, dated July 30, 1981, of respondent Court of Appeals affirming the decision of the
trial court, as well as the resolution, dated August 20, 1982, denying the motion for
reconsideration.
The facts of the case as aptly synthesized and adopted in toto by the respondent appellate
court are as follows:
Defendant Francisco de Asis & Co., Inc. was organized sometime in 1967 with Francisco de
Asis as its president and Leocadio de Asis as one of the members of the Board of
Directors, As a stock brokerage company, it did business in the Makati Stock Exchange
wherein one becomes a member upon the execution of an undertaking by at least 2
members of its Board of Directors who own 95% of the stocks to answer solidarily for the
corporation liabilities of the member company. Leocadio de Asis and Francisco de Asis who
owned 95% of the outstanding capital stock of the Francisco de Asis & Co., Inc. executed
a joint and several undertaking on July 25, 1967 wherein they jointly and severally
warrant the equitable payment of all valid and legitimate corporate liabilities of Francisco
de Asis & Co., Inc. in connection with its membership in the Makati Stock Exchange
(Exhibits A, A-1, and A-2).
Sometime in June, 1970 the defendant company thru its president Francisco de Asis
approached Mrs. Mercedes P. Delgado for assistance to secure a loan in the amount of
P200,000.00 from the Resource & Finance Corporation. Since Francisco de Asis was a
good friend and his father Leocadio de Asis was solvent and answerable in a joint and
solidarily undertaking of the company, she agreed to raise the amount of P200,000.00 as
requested. She was able to secure P100,000.00 from the Resource and Finance
Corporation for which she executed a promissory note (Exhibit F) and the amount of
P100,000.00 from her brother Benito Prieto, Jr. With this amount, she deposited it in the
Bank of Asia, Makati Branch in favor of Francisco de Asis & Co., Inc. under current account
of 2-001, in accordance with the instructions of its President Francisco de Asis (Exhibit B).
Thereafter, on or about August, 1973 Francisco de Asis informed her that he had
P100,000.00 to be made as partial payment of their loan and suggested that she invest it

by buying shares of Philex Mining. To this suggestion, she agreed. Unfortunately, this
supposed partial payment which was to be invested in shares of Philex was not carried out
because Francisco de Asis & Co., Inc. was suspended by the Makati Stock Exchange from
trading, As a result, there was a rush of claims against the company resulting in its
collapse. She Called up Mr. Asis to settle the loan and she was assured of settlement as
Mr. Leocadio de Asis is solvent and answerable for the debts of the company. Mr. de Asis
even sent her a cable assuring her that the loan would be settled (Exhibits C and C-1).
This loan she extended to Francisco de Asis & Co., Inc. remained unpaid. On the other
hand, she had been paying on her own the loan with the Resource & Finance Corp. as well
as with her brother Benito Prieto, Jr. She is married but separated from her husband.
On the part of the defendants only Leocadio de Asis testified. His testimony substantially
established that he is a lawyer and had fully understood the effects and circumstances of
executing the joint and several undertaking, Exhibit A, which was made in accomodation
to his son Francisco de Asis. He was a nominal stockholder of the Francisco de Asis & Co.,
Inc. of which 97% of the subscribed capital belong to his son Francisco while the
remaining 3% was subscribed by him This joint and several undertaking, Exhibit A, was to
answer for obligation in favor of the Makati Stock Exchange in connection with the
operation of said exchange and not in favor of any other party (Exhibit I). He was
compelled to execute this joint and several undertaking which in his opinion is null and
void especially considering that a nominal stock member like himself wig be held liable
because no license will be issued unless this condition is first satisfied. He was an original
Director of the defendant corporation and at one time chairman of the board for a short
period. He ceased to be an officer of this corporation sometime in 1970. He had no direct
participation in the management of the corporation to attend the board meetings. The
corporation had never pass any resolution authorizing Francisco de Asis to secure a loan of
P200,000.00 from Mercedes P. Delgado. As a matter of fact, he had no knowledge of this
transaction except when the instant suit was filed. (pp. 34-37, Record on Appeal). (pages
30-32, Rollo).
Petitioners raised the same assignments of errors presented and passed upon by the
appellate court that the latter erred (1) in declaring that the obligation sued upon was
corporate loan of Francisco de Asis and Co., Inc. and not a personal loan of Francisco de
Asis with the private respondent; and (2) in holding petitioner Leocadio de Asis liable,
jointly and severally, with petitioners Francisco de Asis and Francisco de Asis & Co., Inc.
under the "Joint and Several Undertakings."

encountering cash flow problems;

8. On July 2, 1970, plaintiff deposited the P200,000.00 to the bank account of defendant
corporation at the Bank of Asia, Makati Branch (pages 32-33, Rollo).
have been denied and proved to be false. Thus, We are in affirmance of the findings of
respondent appellate court that
The necessity and urgency for the loan of P200,000.00 was not to meet the personal need
of Francisco de Asis as there is no showing that he was in financial difficulties but to
resolve the cash flow problems of Francisco de Asis and Co., Inc. for which plaintiffappellee deposited the amount of P200,000.00 on July 2, 1970 in the current account of
defendant corporation at the Makati Branch of the Bank of Asia. Neither would the
absence of the usual documents, i.e., promissory notes and/or real estate or chattel
mortgages, negate the existence of the loan. Considering the relationship between the
parties, being very good friends, plaintiff-appellee dispensed with the customary
documentation in her desire to bail out a friend from the difficulties that his corporation is
facing, 97% of the capital stock of which he owned. But the loan of P200,000.00 is not
totally without any document. The deposit slip (Exhibit "B") of the Bank of Asia showing
the deposit of P200,000.00 on July 2, 1970, in Current Account No. 2-0017 of defendant
corporation indicates the receipt of said amount. And the record is bereft of any evidence
disclosing that said funds were used other than for corporate purposes.
If the transaction contemplated by the parties herein is that of a personal loan to
Francisco de Asis, then plaintiff could have simply written out a check in the latter's name
or deposited the amount of the loan in his personal account. (page 33, Rollo).
The claim of the corporation that it had not authorized Francisco de Asis to obtain loan for
the company from the private respondent is belied by the fact that upon deposit of the
sum of P200,000.00 in its current account, it had retained and disbursed the said amount.
And, assuming that it had not really authorized Francisco de Asis to borrow money from
private respondent, the company is still obliged to return the same under Article 2154 of
the Civil Code which provides:
If something is received when there is no right to demand it, and it was unduly delivered
through mistake, the obligation to return it arises.

WE do not agree.
The records are negative of any evidence which would show that the corporate nature of
the transaction alleged in paragraphs 4 and 8 of the complaint which read:

Relative to the argument that Francisco and Leocadio de Asis' liability under their "Joint
and Several Undertaking" is limited to the obligation of the corporation in connection with
its membership at the Makati Stock Exchange, their liability is spelled out by Exhibit "A" as
follows:

4. Sometime in June of 1970, defendant, Francisco de Asis approached plaintiff, who was
a good friend, and informed her that he was in need of P200,000.00 because the stock
brokerage firm bearing his name, defendant Francisco de Asis and Co., Inc. was

NOW, THEREFORE, for and in consideration of the foregoing premises, the Owners hereby
jointly and severally warrant the equitable payment of all valid and legitimate corporate

liabilities of the Francisco de Asis & Co., Inc. in connection with its membership at the
Makati Stock Exchange Exhibit "A" (page 33, Rollo).
The execution of the foregoing instrument is a requirement for membership in the Makati
Stock Exchange. Subdivision 2, Section 1 of Article XIII of the Constitution of the Makati
Stock Exchange clearly states:
that stockholders owning at least 95% of the outstanding capital stock of the applicant
corporation shall execute a public instrument making themselves jointly and severally
liable without limitation for all the transactions and dealings of said corporation and a
copy of said document shall be filed with the Commission provided, however, that if the
95% outstanding capital stock is owned by only one person another stockholder shall be
required to execute with him the said public instrument or guaranty. (page 34, Rollo),
(Emphasis supplied).
And, as pointed out by respondent appellate court, "Leocadio and Francisco de Asis
knowingly and voluntarily executed and signed the Joint and Several Undertaking, Exhibit
"A" ". More so, in the case of Leocadio de Asis who is a lawyer and, therefore, knew the
legal import and far-reaching consequences of the document he signed.
ACCORDINGLY, for lack of merit, the petition is hereby DISMISSED.

Republic vs. Court of Appeals, G.R. No. 163604 May 6, 2005

Art. 41 of the Family Code provides that for the purpose of contracting a subsequent
marriage where one of the spouses has been absent for the periods and under the
circumstances therein, the spouse present must institute a summary proceeding as
provided in said Code for the declaration of the presumptive death of the absentee. Such
summary proceeding is not a special proceeding under the Rules of Court, hence, the
filling of only a notice of appeal from the trial courts order suffices to perfect the appeal
therefrom.
Republic vs. CA May 6, 2005
ISSUE:
Petition for judicial declaration of presumptive death in the nature of a summary
proceeding.
FACTS:
A filed for a judicial declaration of presumptive death for the purpose of contracting a
subsequent valid marriage, which was granted by the RTC of Catbalogan.
The Solicitor General filed a notice of appeal, but was disapproved by the Court of
Appeals, ruling that the declaration of presumptive death is a special proceeding.

SO ORDERED.
LESSONS:
Article 41 (2) of the Family Code: For the purpose of contracting a valid subsequent
marriage during the subsistence of a previous marriage where the prior spouse has been
absent for four consecutive years, the spouse present must institute summary
proceedings for the declaration of presumptive death of the absentee spouse, without
prejudice to the effect of the reappearance of the absent spouse.

G.R. No. 163604

May 6, 2005

REPUBLIC OF THE PHILIPPINES, petitioner, vs.THE HON. COURT OF APPEALS

(Twentieth Division), HON. PRESIDING JUDGE FORTUNITO L. MADRONA, RTC-BR.
35 and APOLINARIA MALINAO JOMOC, respondents.
DECISION
CARPIO-MORALES, J.:
In "In the Matter of Declaration of Presumptive Death of Absentee Spouse Clemente P.
Jomoc, Apolinaria Malinao Jomoc, petitioner," the Ormoc City, Regional Trial Court, Branch
35, by Order of September 29, 1999,1 granted the petition on the basis of the
Commissioners Report2 and accordingly declared the absentee spouse, who had left his
petitioner-wife nine years earlier, presumptively dead.
In granting the petition, the trial judge, Judge Fortunito L. Madrona, cited Article 41, par. 2
of the Family Code. Said article provides that for the purpose of contracting a valid
subsequent marriage during the subsistence of a previous marriage where the prior
spouse had been absent for four consecutive years, the spouse present must institute
summary proceedings for the declaration of presumptive death of the absentee spouse,
without prejudice to the effect of the reappearance of the absent spouse.
The Republic, through the Office of the Solicitor General, sought to appeal the trial courts
order by filing a Notice of Appeal.3
By Order of November 22, 1999s,4 the trial court, noting that no record of appeal was filed
and served "as required by and pursuant to Sec. 2(a), Rule 41 of the 1997 Rules of Civil
Procedure, the present case being a special proceeding," disapproved the Notice of
Appeal.
The Republics Motion for Reconsideration of the trial courts order of disapproval having
been denied by Order of January 13, 2000,5 it filed a Petition for Certiorari6 before the
Court of Appeals, it contending that the declaration of presumptive death of a person
under Article 41 of the Family Code is not a special proceeding or a case of multiple or
separate appeals requiring a record on appeal.
By Decision of May 5, 2004, 7 the Court of Appeals denied the Republics petition on
procedural and substantive grounds in this wise:
At the outset, it must be stressed that the petition is not sufficient in form. It failed to
attach to its petition a certified true copy of the assailed Order dated January 13, 2000
[denying its Motion for Reconsideration of the November 22, 1999 Order disapproving its
Notice of Appeal]. Moreover, the petition questioned the [trial courts] Order dated August

15, 1999, which declared Clemente Jomoc presumptively dead, likewise for having been
issued with grave abuse of discretion amounting to lack of jurisdiction, yet, not even a
copy could be found in the records. On this score alone, the petition should have been
dismissed outright in accordance with Sec. 3, Rule 46 of the Rules of Court.
However, despite the procedural lapses, the Court resolves to delve deeper into the
substantive issue of the validity/nullity of the assailed order.
The principal issue in this case is whether a petition for declaration of the
presumptive death of a person is in the nature of a special proceeding. If it is, the
period to appeal is 30 days and the party appealing must, in addition to a notice of appeal,
file with the trial court a record on appeal to perfect its appeal. Otherwise, if the petition is
an ordinary action, the period to appeal is 15 days from notice or decision or final order
appealed from and the appeal is perfected by filing a notice of appeal (Section 3, Rule 41,
Rules of Court).
As defined in Section 3(a), Rule 1 of the Rules of Court, "a civil action is one by which a
party sues another for the enforcement or protection of a right, or the prevention of
redress of a wrong" while a special proceeding under Section 3(c) of the same rule is
defined as "a remedy by which a party seeks to establish a status, a right or a particular
fact (Heirs of Yaptinchay, et al. v. Del Rosario, et al., G.R. No. 124320, March 2, 1999).
Considering the aforementioned distinction, this Court finds that the instant petition is
in the nature of a special proceeding and not an ordinary action . The petition
merely seeks for a declaration by the trial court of the presumptive death of absentee
spouse Clemente Jomoc. It does not seek the enforcement or protection of a right or the
prevention or redress of a wrong. Neither does it involve a demand of right or a cause of
action that can be enforced against any person.
On the basis of the foregoing discussion, the subject Order dated January 13, 2000
denying OSGs Motion for Reconsideration of the Order dated November 22, 1999
disapproving its Notice of Appeal was correctly issued. The instant petition, being in
the nature of a special proceeding, OSG should have filed, in addition to its
Notice of Appeal, a record on appeal in accordance with Section 19 of the Interim
Rules and Guidelines to Implement BP Blg. 129 and Section 2(a), Rule 41 of the Rules of
Court . . . (Emphasis and underscoring supplied)
The Republic (petitioner) insists that the declaration of presumptive death under Article 41
of the Family Code is not a special proceeding involving multiple or separate appeals
where a record on appeal shall be filed and served in like manner.

Petitioner cites Rule 109 of the Revised Rules of Court which enumerates the cases
wherein multiple appeals are allowed and a record on appeal is required for an appeal to
be perfected. The petition for the declaration of presumptive death of an absent spouse
not being included in the enumeration, petitioner contends that a mere notice of appeal
suffices.
By Resolution of December 15, 2004, 8 this Court, noting that copy of the September 27,
2004 Resolution9 requiring respondent to file her comment on the petition was returned
unserved with postmasters notation "Party refused," Resolved to consider that copy
deemed served upon her.
The pertinent provisions on the General Provisions on Special Proceedings, Part II of
the Revised Rules of Court entitled SPECIAL PROCEEDINGS, read:
RULE 72SUBJECT MATTER AND APPLICABILITYOF GENERAL RULES
Section 1. Subject matter of special proceedings. Rules of special proceedings are
provided for in the following:
(a) Settlement of estate of deceased persons;
(b) Escheat;
(c) Guardianship and custody of children;

(m) Declaration of absence and death;

(n) Cancellation or correction of entries in the civil registry.
Sec. 2. Applicability of rules of civil actions. In the absence of special provisions, the
rules provided for in ordinary actions shall be, as far as practicable, applicable in special
proceedings. (Underscoring supplied)
The pertinent provision of the Civil Code on presumption of death provides:
Art. 390. After an absence of seven years, it being unknown whether or not the absentee
still lives, he shall be presumed dead for all purposes, except for those of succession.
x x x (Emphasis and underscoring supplied)
Upon the other hand, Article 41 of the Family Code, upon which the trial court anchored its
grant of the petition for the declaration of presumptive death of the absent spouse,
provides:
Art. 41. A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent marriage,
the prior spouses had been absent for four consecutive years and the spouse present had
a well-founded belief that the absent spouses was already dead. In case of disappearance
where there is danger of death under the circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of only two years shall be sufficient.

(d) Trustees;
(e) Adoption;
(f) Rescission and revocation of adoption;
(g) Hospitalization of insane persons;
(h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporations;
(k) Judicial approval of voluntary recognition of minor natural children;
(l) Constitution of family home;

For the purpose pf contracting the subsequent marriage under the preceding paragraph,
the spouses present must institute a summary proceeding as provided in this Code
for the declaration of presumptive death of the absentee, without prejudice to the effect of
a reappearance of the absent spouse. (Emphasis and underscoring supplied)
Rule 41, Section 2 of the Revised Rules of Court, on Modes of Appeal, invoked by the trial
court in disapproving petitioners Notice of Appeal, provides:
Sec. 2. Modes of appeal. (a) Ordinary appeal. - The appeal to the Court of Appeals in cases decided by the Regional
Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of
appeal with the court which rendered the judgment or final order appealed from and
serving a copy thereof upon the adverse party. No record on appeal shall be required
except in special proceedings and other cases of multiple or separate appeals
where the law or these Rules so require. In such cases, the record on appeal shall be
filed and served in like manner. (Emphasis and underscoring supplied)

xxx
By the trial courts citation of Article 41 of the Family Code, it is gathered that the petition
of Apolinaria Jomoc to have her absent spouse declared presumptively dead had for its
purpose her desire to contract a valid subsequent marriage. Ergo, the petition for that
purpose is a "summary proceeding," following above-quoted Art. 41, paragraph 2 of the
Family Code.

Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of Republic Act No. 386,
otherwise known as the Civil Code of the Philippines, as amended, and Articles 17, 18, 19,
27, 28, 29, 30, 31, 39, 40, 41 and 42 of Presidential Decree No. 603, otherwise known as
the Child and Youth Welfare Code, as amended, and all laws, decrees, executive orders,
proclamations rules and regulations, or parts thereof, inconsistent therewith are
hereby repealed, (Emphasis and underscoring supplied),
seals the case in petitioners favor.

Since Title XI of the Family Code, entitled SUMMARY JUDICIAL PROCEEDING IN THE
FAMILY LAW, contains the following provision, inter alia:
xxx
Art. 238. Unless modified by the Supreme Court, the procedural rules in this Title shall
apply in all cases provided for in this Codes requiring summary court proceedings.
Such cases shall be decided in an expeditious manner without regard to technical
rules. (Emphasis and underscoring supplied)
x x x,
there is no doubt that the petition of Apolinaria Jomoc required, and is, therefore, a
summary proceeding under the Family Code, not a special proceeding under the Revised
Rules of Court appeal for which calls for the filing of a Record on Appeal. It being a
summary ordinary proceeding, the filing of a Notice of Appeal from the trial courts order
sufficed.
That the Family Code provision on repeal, Art. 254, provides as follows:

Finally, on the alleged procedural flaw in petitioners petition before the appellate court.
Petitioners failure to attach to his petition before the appellate court a copy of the trial
courts order denying its motion for reconsideration of the disapproval of its Notice of
Appeal is not necessarily fatal, for the rules of procedure are not to be applied in a
technical sense. Given the issue raised before it by petitioner, what the appellate court
should have done was to direct petitioner to comply with the rule.
As for petitioners failure to submit copy of the trial courts order granting the petition for
declaration of presumptive death, contrary to the appellate courts observation that
petitioner was also assailing it, petitioners 8-page petition 10 filed in said court does not so
reflect, it merely having assailed the order disapproving the Notice of Appeal.
WHEREFORE, the assailed May 5, 2004 Decision of the Court of Appeals is hereby
REVERSED and SET ASIDE. Let the case be REMANDED to it for appropriate action in light
of the foregoing discussion.
SO ORDERED.