G.R. No. L-35351




Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-35351 March 17, 1976 ROGELIO DY, SY JIAN AND DY CHING ENG, petitioners, vs. THE HONORABLE JUDGE MANUEL LOPEZ ENAGE AND HEIRS OF EMMANUEL O. TOLENTINO, represented by MARIA DUGOS VDA. DE TOLENTINO, respondents. Elias Q. Tan for petitioners. Arturo M. de Castro & Soledad Cagampang-de Castro for respondent Maria Dugos Vda. de Tolentino. Cataluña, Buñol & Yebes also for respondents. BARREDO, J.: Petition for "certiorari, prohibition and mandamus, with preliminary injunction" asking the Court to declare null and void the orders of respondent judge of July 18, 1972 and July 25, 1972 in Civil Case No. 1251 of the Court of First Instance of Agusan del Norte and Butuan City and to enjoin said respondent from further taking cognizance of the case except to dismiss the same by command of this Court, which prayer was enlarged in a supplemental petition to include the order of attachment of September 28, 1972 and the decision of September 20, 1972, and all implementing orders thereof, among the actuations sought to be annulled. Later, a second supplemental petition was filed to impugn other subsequent orders of respondent judge to be specifically referred to later in this decision. After issues were joined, a special motion dated February 10, 1973 was filed by private respondents praying that the Court of First Instance of Cebu, Branch XIV, be enjoined to dismiss Civil Case No. R-13062 therein filed by Atty. Elias Q. Tan, counsel of herein petitioners in the above-mentioned case in Agusan del Norte, against said respondents, for damages, and that the writ of preliminary attachment issued therein be quashed, and after comment thereon was filed by petitioners, the Court issued the following' resolution on May 4, 1973: L-35351 (Rogelio Dy, et al. vs. Hon. Manuel Lopez Enage, etc., et al.). — Considering the urgent motion of the respondents for the issuance of a temporary restraining order to enjoin the Court of First Instance of Cebu from taking further proceedings in Civil Case No. R13062 during the pendency in this Court of respondents' motion to dismiss said civil case or for the issuance of injunction or restraining order with quashal of preliminary attachment, the Court Resolved: (a) to issue a TEMPORARY RESTRAINING ORDER effective immediately and until further orders from this Court, and (b) to require both the petitioners and private respondents within ten (10) days from notice hereof, to file such pleadings as may be necessary so as to properly implead the Court of First Instance of Cebu City taking cognizance of Civil Case No. R-13062. (Page 562, Record.) Voluminous representations have been filed by the parties relative to this resolution but none of them adequately amounts to any of the pleadings called for by the situation and required by the resolution. And considering that the matters treated in said motion of February 10, 1973 are not procedurally related to the petition in this case, the Court will not resolve the merits of said motion, without prejudice to the private respondents filing the proper separate petition so that issues may be regularly joined and resolved albeit the restraining order issued by the Court shall continue in force until the court in which respondents might file their action acts one way or the other in the premises, but if no such separate action is filed by respondents within ten (10) days from notice hereof, the said restraining order shall be deemed automatically lifted. In other words, this decision will deal exclusively on the original and supplemental petitions herein. It appears that on October 10, 1968, petitioners filed with respondent court Civil Case No. 1251 against one Emmanuel O. Tolentino, predecessor in interest of private respondents. Pertinently, the complaint alleged as follows: FOR FIRST CAUSE OF ACTION 1 — That plaintiffs are of legal ages and residents of the municipality of Cabadbaran, province of Agusan, Philippines and the defendant is likewise of legal age and a resident of sgd municipality and province where he may be served with summons. 2 — That after the liberation plaintiffs spouses Dy Ching Eng and Sy Jean resumed their general merchandise and copra business in the municipality of Cabadbaran, province of Agusan, continued their aforesaid general merchandise business until the present time and closed their copra business in the year 1966, will their son, plaintiff Rogelio Dy engaged in the copra business in said municipality and province beginning 1966 and continues it until the present time. 3 —That the defendant who is the younger brother of plaintiff Sy Jean is likewise engaged in the general merchandise and copra business in said municipality and province and during the period from 1960 or thereabouts until 1964 bought from plaintiffs Dy Ching Eng and Sy Jean copra on credit basis and the said plaintiffs Dy Ching Eng and Sy Jian delivered on credit basis to the defendant on July 24, 1964, 288 sacks of copra weighing 11,679 kilos net at P48.00 per 100 kilos worth P5,605-92; on July 26, 1964, 146 sacks of copra weighing 5,749 kilos net at P48.00 per 100 kilos, worth P2,759.52; on July 31, 1964, 144 sacks of copra weighing 5,716 kilos net at P48.00 per 100 kilos worth P2,858.00; on August 6, 1964, 343 sacks of copra weighing 14,187 kilos net at P48.00 per 100 kilos worth P5,296.00; on August 14, 1964, 126 SACKS OF COPRA WEIGHING 5,296 KILOS net at P46.00 per 100 kilos worth P5,296.00; on August 14, 1964, 75 sacks of copra weighing 2,867 kilos net at P46.00 per 100 kilos worth P1,318.82; on August 20, 1964, 225 sacks of copra weighing 8,659 kilos net at P44.00 per 100 kilos worth P3,809.96; and on August 27, 1964 303 sacks of copra wishing 12,514 Idlos net at P44-00 per 100 kilos worth P5,506.16, as shown by corresponding Statements of deliveries, copies of which are hereto attached, marked as annex "A", "B", "C", "D", "E", "P", "G", and "H" and made integral parts hereof, valued in all at P31,104.30. 4 — That the defendant made partial payments for said plaintiffs' copra in checks drawn against the Philippine Bank of Communications, Cebu Branch, Cebu in the total sum of P10,000.00, among which was check No. T-W253 dated November 13, 1967 for P2,000.00 which check could not be collected and cashed by plaintiffs spouse for the reason that defendant stopped payment of the same, n shown on the face and reverse sides of said check No. T-445253, photostat copies of which face and reverse sides are hereto attached, marked as Annexes "I" and "A" and made integral parts hereof, and also in cash for P6,000.00 as shown by a "vale" dated November 18, 1967 signed by plaintiff Sy Jean, copy of which is hereto attached as Annex "J" and made an integral part hereof, all which partial payments amounted to P16,000.00, thereby leaving an unpaid balance of P15,104.30, and despite earnest efforts exerted by plaintiffs spouses towards a compromise and extra-judicial amicable settlement of said defendant's indebtedness, the same have failed and despite repeated demands made by said plaintiffs upon the defendant to pay said unpaid balance, the latter failed and refused and still continues to do so without valid and justifiable cause therefore, thereby committing breach of contract in evident bad faith and fraudulently for which defendant should be held liable to said plaintiffs for actual damages in the amount of P3,3562.03 until the present time and for moral damages in the amount of P5,000.00 FOR SECOND CAUSE OF ACTION Plaintiffs respectfully allege: 1 — That the plaintiffs hereby reproduce and incorporate as part hereof the averments contained in paragraphs 1, 2, 3, and 4 under the first cause of action hereof. 2 — That in 1966 to 1967 defendant used to buy from plaintiff Rogelio Dy copra at most at P68.00 per kilo, but considering that the current market price of copra at that time was much higher than the price per kilo paid by the defendant for said plaintiffs copra, the said plaintiff Rogelio Dy stopped in 1967 to sell his copra to the defendant. 3 — That by reason of plaintiff Rogelio Dy's refused to continue selling his copra to the defendant, the defendant on or about November 22, 1967 after plaintiff Sy Jean had received from him the amount of P6,000.00 shown in the receipt, Annex 'J' sent for plaintiffs Sy Jean and Rogelio Dy to go his store at Cabadbaran, Agusan; that while plaintiff Sy Jian was in the said store ahead of Rogelio Dy, the defendant scolded her on account of their failure to sell copra to him; that when Sy Jean explained that she could not interfere and control her son Rogelio Dy in connection with the management of his business, the defendant threated to cause bodily harm to her and sent for plaintiff Rogelio Dy to go to his store; that once the said plaintiff Rogelio Dy was in defendant's store and saw his mother being treated by the defendant, the defendant began to scold plaintiff Rogelio Dy for not having continued to sell copra to him, threatened to kill him and under threats and intimidation with a pistol compelled without any lawful authority the said plaintiff Rogelio Dy to sign a blank form on said date, the printed recitals of which blank form tend to show that plaintiff Rogelio Dy supposedly received from the defendant on the date stated therein the amount of P16,000.00 in trust for the purpose of buying copra with the supposed obligation of delivering to him the copra and or of returning the said amount, when in truth and in fact, the said plaintiff Rogelio Dy never at all prior to the date mentioned in said defendants printed form received from the defendant the sum of P16,000.00 nor did said plaintiff Rogelio Dy ever act as supposed purchasing agent for copra for the defendant; that by reason of the threats and intimidation made by the defendant to kill not only Sy Jean but also him, the plaintiff Rogelio Dy by reason of fear was compelled to affix against his will his signature on the said printed form. 4 — That the supposed contract of agency prepared by the defendant without the intervention, consent or authority of any one of herein plaintiffs, mentioned the sum of P16,000.00 which was the partial payments made by the defendant for the said deliveries of copra belonging to the plaintiffs spouses; that, as a matter of fact and in truth, after the defendant had succeeded through threats and intimidation to make plaintiff Rogelio Dy sign the said supposed contract of agency, the defendant delivered to Sy Jean the receipt for P6,000.00 annex X hereof. 5 — That the said supposes contract of agency is null and void, illegal and invalid, is fraudulent and constitutes a falcification of a private document. 6 — That by reason of the unlawful, malicious, wrongful, and fraudulent acts of the defendant, the plaintiffs have suffered actual damages in the amount of P16,000.00 and moral damages for mental anguish, serious anxiety, social humiliation and wounded feelings in the amount that the court may fix. 7 — That despite earnest efforts exerted by the plaintiffs towards a compromise, the same have failed and despite repeated demands made by plaintiff Rogelio Dy to cancel the supposed contract of agency and to desist from enforcing it in any manner, the defendant refused to do so and continues to threaten to to prosecute plaintiff Rogelio Dy for supposed estafa for the purpose of harrassing, oppressing and humiliating the said plaintiff Rogelio Dy in particular and his parents in general. (Pages 137-141, Record.) In his answer, the defendant made specific denials and alleged affirmative defenses and in addition interposed counterclaims as follows: COMES NOW the defendant in the above-entitled case, thru counsel, and in answer to the complaint, to this Honorable Court most respectfully alleges: 1. That defendant admits the allegation contained in paragraph 1 for the fust cause of action in the complaint. 2. That defendant has no infomation as to the truth of the allegations contained in paragraph 2 of the complaint (first cause of action). But whether plaintiffs had license to engage in the copra business or not the fact is that plaintiffs were acting only as copra purchasing agents for the defendant. 3. That defendant admits that he is engaged in the general merchandise and copra business in the municipality of Cabadbaran and province of Agusan; but specifically denies the information that he is a younger brother of plaintiff Sy Jean; the truth of the matter is Sy Jean was an adopted daughter of defendant's father and coincidentally when they happened to reside together in Agusan they considered themselves as brother and sister, and 0 they were known as such in the community of Agusan. Defendant further denies that he had business relation on credit basis with plaintiffs' son. The truth being that all the plaintiffs were merely copra purchasing agents of the defendant. And the defendant has no knowledge or information to form a belief as to the truth of the matter alleged in the remaining Portion of paragraph 3 of the fust cause of action of the complaint, and, therefore denies the same, and further denies under oath the selfserving annexes attached to the complaint and marked as annexes "A", "B", "C", "D", "E", "F", "G", and "H" which apparently are tally saheets for being manufactured documents and inadmissible evidence. 4. That the allegation contained in paragraph 4 are hereby denied. The truth of the matter is hereinafter alleged in the special and affirmative defenses. 5. That the allegations contained in paragraph 5 are hereby denied. The truth of the matter is hereinafter alleged in the special and affirmative defenses, and that further defendant is not obligated in anyway to pay any amount of actual damages, much less is defendant liable for moral damages. 6. That Paragraph 1 of the second cause of action, being a mere reproduction of the previous allegations, is also hereby denied and the allegations contained in the previous paragraph i of this answer are hereby reproduced and replead. 7. That the allegations contained in paragraph 2 of the sand cause of action are hereby denied. The truth of the matter being that in no time as far as defendants recollection is concerned the exagerated price of P68 per kilo of copra has ever been obtaining in Agusan or elsewhere. And further it is denied that defendant has ever purchased copra from the plaintiff Rogelio Dy. The truth being that plaintiff Rogelio Dy has been a copra purchasing agent for the defendant. 8. That the allegations contained in paragraphs 3 and 4 of the second cause of action of the complaint are hereby denied. It is specifically denied that plaintiffs Sy Jean and Rogelio Dy were ever threatened of bodily harm much less threatening Rogelio Dy to be killed. It is further specifically denied that Rogelio Dy was compelled to sign a blank form. The truth of the matter further is hereinafter alleged in the special and affirmative defeses With respect to the receipt for P6,000.00 marked in the complaint at Annex "J" is admitted that it was returned to Sy Jean together with another receipt for P10,000.00 after the receipt for P16,000.00 was signed by plaintiff Rogelio Dy who appeared to have in his ion the P16,000.00 and who was the licensed copra dealer. And the truth of the matter further is hereinafter alleged in the special and affirmative defenses. 9. That the allegations contained in paragraph 5 am conclusions of law. But it is denied that the contract agency is null and void, illegal and invalid, much less, fraudulent and constitutes a falsification of private document. The trust of the matter is that said contract of agency is legal and valid, not fraudulent nor falsification, it having been executed in due course and for value. 10. That the allegations contained in paragraph 6 of the second cause of action are again conclusions of fact and consclusions of law. But if plaintiffs have suffered actual damages in the amount of P16,000.00 and undetermined moral damages plaintiffs alone are responsible therefor and defendant is not liable of the same. 11. That the allegations contained in paragraph 7 of the second cause of action are hereby denied. The truth of the matter is that it was the defendant who exerted earnest efforts to secure payment of plaintiffs' obligations, but despite such efforts exerted by defendant plaintiffs have remained adamant and entirely disregarded the repeated request of the defendant, and due to this refusal of the plaintiff Rogelio Dy to pay his obligation to the defendant the latter was compelled to seek the intervention of the Office of the Provincial Fiscal in order to legally enforce the agency contract sometime in August 18, 1968. But until now no payment was effected by said plaintiff. And the truth of the matter further is that in sinking the intervention of the Provincial Fiscal of Agusan it was not the purpose of defendant to harass, oppress and humiliate plaintiff Rogelio Dy but merely in the legitimate exercise of legal rights of the defendant. 12. That as to the allegations common to first and sand causes of action, particularly paragraph 7 and 8 affecting petition for injunction, said allegations are untenable. because merits of the criminal action involved are to be determined by proper authorities vested with powers and jurisdiction to act on the matter. If criminal action has merits and at least PRIMA FACIE evidence shown, the exercise of such power is vested with the Provincial Fiscal in this particular case; and with respect to the civil action involved the same is hereinafter incorporated in a counterclaim. Both criminal and civil action cannot be prevented by injunction. SPECIAL AND AFFIRMATIVEE DEFENSES defendant respectfully alleges: 13. That prior to August 26, 1964, Mr. and Mrs. Dy Ching Eng of Cabadbaran, Agusan had been copra purchasing agents of the defendant, by virtue of which agency they were accorded by the defendant cash advances. 14. That the liquidation of cash advances and value of copra delivered were effected at the end of every month. 15. That on August 26, 1964 a liquidation of cash advances and value of copra delivered was made, and plaintiffs spouses Dy Ching Eng and Sy Jean had an outstanding balance payable to the defendant in the amount of P10,386.69. 16. That sometime on September 1, 1964 a big fire occured in Cabadbaran, Agusan in which the spouses Dy Ching Eng and Sy Jean suffered heavy losses. 17. That due to the losses suffered by said spouses Dy Ching Eng and Sy Jean both spouses were not required to liquidate immediately their account of P10,368.69, and on the contrary they were further given Pl,000.00 on September 3, 1964 covered by mere vales signed in chinese characters by Sy Jean, and in order to further help them rehabilitate themselves from the fire losses both spouses were not pressed for payment of their total outstanding account in the sum of P12,368.69 leaving the matter for future liquidation at their own request. 18. That sometime in 1966 plaintiff Dy Ching Eng transferred his copra business to his son Rogelio Dy who eventually took over the business of his parents from that time on until now, although plaintiffs Dy Ching Eng and Sy Jean continued to help their son Rogelio Dy in running the copra business. 19. That on two (2) occasions, particularly November 13 and 17, 967 plaintiff Sy Jean came to defendant's store and requested for advance amount of P10,000.00, and P6,000.00 respectively. She specifically requested and so the defendant accommodated that the amounts be covered by checks of P2,000.00 each to facilitate her and her son Rogelio Dy's purchases of copra as agent of defendant. The November 13 checks were five (5) in number for the total amount of P10,000.00 and the November 17 checks were three (3) in number for a total of P6,000,00. 20. That the above eight (8) checks were covered by two (2) provincial receipts or values, one dated November 13, 1967 and the other dated November 18, 1967. The latter value is now Annex "J" of the complaint. 21. That late in the afternoon of November 18, 1967 plaintiff Rogelio Dy came to the store and after confirming the values of plaintiff Sy Jean he prepared in his own handwriting a cash advance receipt which is partly printed and partly handwritten receipt for P16,000.00. This is a requisite which had to be effected in view of the fat, that it was plaintiff Rogelio Dy who was and still is the licensed copra dealer 22. That after preparing the partly printed and partly handwritten cash advance receipt for P16,000.00, and after the same was handed over by Rogelio Dy to the defendant and in turn defendant returned to Sy Jian thru Rogelio Dy two previous values signed by Sy Jean. 23. That during that period of time between November 13 up to and including November 18, 1967 defendant noticed that there were accumulations of the stock of copra in the bodega of the plaintiffs, which bodega incidentally is located just across the street where defendant's store is situated. 24. That on the 19th of November 1967 defendant came to Cebu and had only returned to Cabadbaran on the 22nd day of November 1967. 25. That upon his return to Cabadbaran, Agusan he noticed that the bodega of plaintiffs was already empty. So, he went to confront Plaintiff Rogelio Dy and his mother Sy Jean why was it that their bodega was empty. They replied to the defendant that the copra was sold to a purchaser in Surigao because according to them said purchaser paid a better price for the copra. 26. That defendant told plaintiffs Rogelio Dy and Sy Jean that at least they should have advised the defendant because defendant was also willing to pay an increased price. But both plaintiffs answered that the matter is already closed and there was nothing they could do about it. So, defendant asked for the return of his money. But plaintiffs could not readily do it. So, defendant wired the Philippine Bank of Communications of Cebu City to stop payment of the eight (8) checks above-mentioned, but unfortunately four (4) checks were already cashed and stopping paying was only effected on the other four (4) checks. 27. That in view of the fact that no payment of the amount was made, much less a delivery of copra effected . despite the lapse of considerable length of time and notwithstanding repeated demands, defendant was compelled to seek the intervention of the Provincial Fiscal, but still no payment was effected until now. 28. That the filing of the present case is a plain harassment and a clear retaliation for what defendant has done in seeking the intervention of the Provincial Fiscal. As FIRST COUNTER-CLAIM Defendant respectfully alleges: 29. That for the sake of brevity defendant hereby reproduces and repleads all the allegations contained in the previous paragraphs of this answer and special and affirmative defense. 30. That defendant has ascertained that out of the eight (8) checks at the rate of P2,000.00 each, four (4) checks were already cashed, particularly cheeks Nos. T-445251, T-445255 and T-445269 or a total amount of P8,000.00, and the other four (4) cheeks totalling P8,000.00 were not effectively cashed because payment of the same was accordingly stopped. 31. That the cash advance receipt of P16,000.00 is therefore reduced to only P8,000.00 if and when the four (4) other checks shall be returned by the plaintiffs to the defendant. As SECOND COUNTER-CLAIM Defendant respectfully alleges: 32. That for the sake of brevity defendant hereby reproduces and repleads all the allegations contained in the previous paragraphs of this answer and special and affirmative defenses, including the allegations contained in the first counterclaim. 33. That plaintiffs are indebted to the defendant in the total sum of P12,368.69 as acknowledged by Sy Jean, particularly in her cash advance of August 26, 1964 and values of September 2 and September 3, 1964 respectively, which account totalling P12,868.69 remains unpaid and outstanding until now, despite repeated demands subsequently made by the defendant for its payment. As THIRD COUNTER-CLAIM Defendant respectfully alleges: 34. That for the sake of brevity defendant hereby reproduces and repleads all the allegations contained in the previous paragraphs of this answer and special and affirmative defenses including the allegations contained in the first and second counterclaims. 35. That defendant is a businessman of good standing in the Municipality of Cabadbaran and Province of Agusan with quite a considerable gross negotiations every year. 36. That defendant also enjoys good standing in the community of Cabadbaran, Agusan having been President since 1966 and he is still President of the Cabadbaran Lions Club until now. 37. That defendant has been maligned by the plaintiffs by 'bringing this clearly unfounded civil action against him in gross and bad faith, and as a consequence defendant suffered actual losses in his business and also suffered moral damages, and in view of the fact that plaintiffs have acted in gross bad faith and evident malice in filing the complaint they should be made to pay actual, moral and exemplary damages in such amount as to this Honorable court may determine in the exercise of its sound discretion. 38. That plaintiffs, by maliciously filing the instant complaint against the defendant, have compelled the latter, for the protection of his interest, to incur litigation expenses, and engage the services of undersigned counsel with whom he has agrhe time the orders of attachment complained of were issued, respondent court acted with grave abuse of discretion, and the writs issued thereunder and all subsequent proceedings related thereto must consequently be as they are hereby set aside. On November 14, 1971, the defendant Tolentino died. This was before he had completed the formal presentation of his evidence in support of his counterclaims. Whereupon, Atty. Vicentey Jayme for the respondents, after their proper Vicente Jayme for the respondents, after their proper substitution as heris of defendant Tolentino, filed a so-called "Jurisdictional Motion for Dismissal of Plaintiffs' Complaint" on December 13, 1971, asking however that notwithstanding the dismissal of the complaint prayed for, the court proceed with the trial and final disposition of the cournterclaims. The motin was based on the ground that inasmuch as the plaintiff's case was a claimfor money, under Section 21 of Rule 3, it should be dismissed as an action and filed as a claim inthe special proceedings for the settlement of the estate of the deceased defendant. Petitioners opposed said motion contending that the second cause of action was for damages and that their defense to the counterclaims of the defendant was in the complaint and citing the case of Javier vs. Araneta, L-4369, August 31, 1953, in support of their opposition. On January 5, 1972, respondent judge denied the motion to dismiss thus: "For not being well-founded, the motion filed by Atty. Vicente Jayme, counsel for the defendants, dated Decembr 13, 1971 based onthe grounds threin stated (See: pp. 470-471, Recods) is hreby ordered DENIED. SO ORDERED." (Page 9, Record.) Threeafter, the court porceeded with the trial and on May 4 1972 ordered the admission of the documentary evidence of defendants listed inthe order of even date, and upon manifestationof plaintiffs that they have rebuttal evidence to present, set the case for hearing for the purpose of receiving the same, but instead of agreeing to thedats porposed by them: July 11, 12 and 13, 1972, the court, in its order of May 22, 1972, set the reception of said evidence on July 3, 1972, only to change this later or on June 28, 1972, to July 5, 1972 for fear that July 3, 1972 might be declared a public holiday, and still later to July 25, 1972 might be declared a public holiday, and still later to July 25, 1972 upon motion of plaintiffs' counsel. In the meanwhile, on June 27, 1972, plaintiffs filed the following motion, which they set for hearing on July 3, 1972, albeit no hearing appears to have beenheld onsaid date: "COME NOW the plaintiffs, thorugh counsels, and to this Honorable Court respectully allege: 1. That the reception of plaintiffs' rebuttal evidence inthe above-entitled case has been set for July 3rd, 1972, at 8:30 A.M. 2. That as defendant Emmanuel O. Tolentino died before completion of plaintiffs' cross-examination and before finality of judgment on plaintiffs' respective money claims against him, and as the substituted defendants have filed jurisdictional motion for dismissal of this case, the ;laintiffs hreby withdreaw their opposition to said jurisdictional motion by reason of the fact that, as pointed out therein, this Honorable Court is divested of jurisdiction to continuetaking cognizance of plaintiffs' money claim and said money claim should be filed with the proper probate court. 3. That in the interest of justice and in order not to render judgment on said money claim null and void for lack of jurisdiction, the plaintiffs desire to present completely competent, relevant and material evidence before the proper probate court to substantiate their aforesaid money claims and for this reason they are constrained to move this Honorable Court to dismiss provisionally this case to move this Honorable Court to dismiss provisionally this case without prejudice of refiling same with the proper probate court and of reproducing therein the evidence and presenting rebuttal evidence according as the nature of defendants' evidence may demand. 4. That in view of the foregoing considerations, the plaintiffs hereby manifest that they no longer will present rebuttal evidence resrving same to be adduced instead in the proper probate court. WHEREFORE, this Honorable Court is most respectfully prayed to dismiss provisionally the above-entitled case without prejudice of refiing same with the proper probate court and of presenting and reproducing therein plaintiffs' evidence for final determination and decision by said probate court." On Juy 13, 1972, defendants filed the following: DEFENDANTS COUNTER-MANIDFESTATION AND OPPOSITION TO THE MOTION DATED JUNE 27, 1972 COME the defendants in the above-entitled case, thru the undersigned counsel, and to this Honorable Court most respectfully manifest and submit an opposition to the dismissal of defendants' counterclaim on the following grounds: 1. That copy of plaintiffs' Manifestation and Motion dated June 27, 1972 appears to have been mailed from Butuan City on June 28, 1972, and received by us after July 3, 1972. 2. That as far back as December 13, 1971 we have submitted to this Honorable Court a pleading entitled "JURISDICTIONAL MOTION FOR DISMISSAL OF PLAINTIFFS' COMPLAINT (PRIVILEGED AND URGENT)'. 3. What our grounds therein alleged are hereto replead and reproduced IN TOTO. 4. That said motionhas beenopposed by the plaintiffs under a pleaing entitled 'OPPOSITION TO JURISDICTIONAL MOTION FOR DISMISSAL OF PLAINTIFFS' COMPLAINT' dated December 29, 1971. 5. That an order dated January 5, 1972 was issued by this Honorable Court denying our motion. 6. That in the meantime and in due course continuation of the trial was held and the formal offer in evidence of all the exhibits of the defendants was effected under date of February 19, 1972, which exhibits were admited by the Court inits order of May 4, 1972. 7. That as it is the case of the defendants is completed with their counterclaim duly substantiated. 8. That the counterclaim is in itself an independent action, not subject to suspension or dismissal because it survives the deceased Don Emmanuel O. Tolentino. 9. That as a matter of fact is is now deemed submitted to the decision of the Honorable Court without any strings attached to said counterclaim. WHEREFORE, in reiteration, this Honorable Court is most respectfully prayed to grant the motion to dismiss plaintiffs' complaint, and to declare the case of the defendants as far as their counterclaim is concerned, submitted for the decisionof this Honorable Court." (Pp. 12-13, Recod.) And on July 18, 1972, the court issued the following order: "For lack of merit, the manifestation and motion filed by Atty. Cipriano C. Alvizo, Sr. for the plaintiffs (See: pp. 543-544, Records), and the counter-manifestation and opposition filed by Atty. Vicente Jayme for the defendants (See: pp. 547-548 Records) are hereby ordered DENIED. ASprayed of (for) by Atty. Alvizo, Sr., set this case for the reception of the rebuttal and surrebuttal evidence on July 25, 1972 from 8:30 A.M. to P.M. with due notice to all counsel." (Page 14, Record.) A motion dated July 23, 1972 for reconsideration of thir order was filed by plaintiffs but on July 25, 1972, what happened is narrated in the order of the court of said date as follows: "When this case was called for the reception of plaintiffs' rebuttal evidence for the second time at exactly 11:23 A.M. today, Atty. Cipriano C. Alvizo, Sr., counsel for the plaintiffs, together with all the plaintiffs themeslves, failed to appear in court despite due notice to them in open court the first time this case was called at 8:30 A.M., and in spite of the two personal notices given to said Atty. Alvizo, Sr., who was by then withinthe sala of Branch 1 of this court sitting, whre no sessions were yet had, first by Court Proces Server Rodrigo T. Macion and second, by CIC Raymundo C. Morgadez minutes before the second call as above said. The reception of plantiffs reguttal evidence was previously set by the court, upon previous prayer of plaintiffs, thru counsel, in their Manifestaion and Motion dated May 15, 1972 (See: p. 537, Records), on July 3, 1972 in anorder dated May 22, 1972 (See: p. 541, Records). Later, plaintiffs, thru counsel, prayed the court again in their Urgent Ex Parte Motion dated June 30, 1972 — 'to reset for July 25, 1972 the hearing of this case.' (See: p. 545, Records.) Again plaintiffs' above said motion was granted by the court as prayed for by them in an Order dated July 18, 1972 resetting the reception of plaintiffs' rebuttal evidence today, July 25, 1972 from 8:30 A.M. to 7:00 P.M., with due notice to said Atty. Cipriano C. Alvizo, Sr. by personal service on July 22, 1972 (See: p. 550, Records). First call of the case was had Atty. Alvizo, Sr. appeared and presented plaintiffs' Urgent Motion for Reconsideratio dated July 23, 1972 but only filed today 25 minutes before the first call. The court intimated to said Atty. Alvizo, Sr. that it could not entertain the said motion on grounds which the court would give in an Order to be issued later and insisted on plaintiffs' presentationof their promised rebuttal evidence. The court, however, in fairness to plaintifs who were absent in court, gave said Atty. Alvizo, Sr. until 11:00 A.M. to present his rebuttal witnesses. The the second call came at exactly 11:23 A.M. as above said and what happened was what was already narrated by the court at the opening of this Order. By reason of all the foregoing, it is the sense of the court that plaintiffs have elected to waive their right to present rebuttal evidence, prompting the cort to consider, as it hereby HOLDS that this case is now considered reglementarily submitted fo rdecisonon the merits. There being no rebuttal evidence to sur-rebt, a Atty. Lydio J. Cataluna, counsel for the defendants, presented no objection to the foregoing. Plaintiffs' Urgent Motion for Reconsideration filed only today, 25, minutes before 8:30 A.M. (See: p. 553, Recods) when this case was caled for the reception of their promised rebuttall evidence as prayed for them thru said Atty. Alvizo, Sr. as above said (See: pp. 553-555, Records), is hreby ordered, for bieng unreglementary and dilatory in nature andtiming, DENIED, pursuant to Section 4, Rule 15 of the Revised Rules of Court." (Pp. 18-20, Record.) On July 29, 1972, plaintiffs PREMISES CONSIDERED, judgment is hereby rendered granting the instant petition. The trial court's decision of September 20, 1972 as well as its orders of July 18 and 25, 1972, together with all its orders of preliminary attachment against the properties of the petitioners are hereby set aside and rendered without force and effect. Respondent court is enjoined to dismiss the subject case before it (Civil Case No. 1251) in so far as petitioners' first cause of action is concerned, without prejudice to its being filed as a money claim in special proceedings for the settlement of the estate of the deceased Emmanuel O. Tolentino. Respondent court is further ordered to proceed with the trial of respondents' counter-claims by allowing the petitioners to present their evidence in defense thereto, after which another decision should be rendered as the facts and the law may warrant. The incident of contempt shall be continued upon appropriate motion of the interested parties. With respect to the matter of alleged irregular and illegal attachment secured by Atty. Elias Q. Tan from the Court of First Instance of Cebu, the Court rules that it should be made the subject of a separate action, albeit the restraining order issued by this Court on May 4, 1973 is hereby maintained until such appropriate action is filed, in which event, the court taking cognizance thereof may act as it may deem proper in regard to said restraining order which was issued only to maintain the status quo, for the purpose of avoiding that the controversy between the parties should be more complicated in the instant proceeding. Costs against respondents. Antonio, Aquino, Concepcion, Jr., and Martin, JJ, concur. Note: Mr Justice Enrique M. Fernando is on leave. Mr. Justice Ruperto G. Martin was designated to sit in the Second Division. The Lawphil Project - Arellano Law Foundation