FIRST DIVISION
G.R. No. 167321 July 31, 2006
EPIFANIO SAN JUAN, JR., petitioner,
vs.
JUDGE RAMON A. CRUZ, REGIONAL TRIAL COURT, BRANCH 224, QUEZON CITY and ATTY. TEODORICO A. AQUINO, respondents.
D E C I S I O N
CALLEJO, SR., J.:
Before the Court is a Petition for Review on Certiorari of the Resolution1 of the Court of Appeals (CA) in CA-G.R. SP No. 87458 dismissing the Petition for Certiorari with Prayer for Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction of petitioner Epifanio San Juan, Jr., as well as its Resolution2 denying the motion for reconsideration thereof.
The Antecedents
Loreto Samia San Juan executed a Last Will and Testament naming Oscar Casa as one of the devisees therein. Upon Loreto's death on October 25, 1988, Atty. Teodorico A. Aquino filed a petition for the probate of the will in the Regional Trial Court (RTC) of Quezon City. The case was raffled to Branch 224 of the court and was docketed as Special Proceedings No. 98-36118.
While the petition was pending, Oscar Casa died intestate on May 24, 1999. The firm of Aquino, Galang, Lucas, Espinoza, Miranda & Associates entered their appearance as counsel of Federico Casa, Jr., who claimed to be one of the heirs of Oscar Casa and their representative.
On August 14, 2002, the probate court issued an Order denying the entry of appearance of said law firm, considering that Federico Casa, Jr. was not the executor or administrator of the estate of the devisee, hence, cannot be substituted for the deceased as his representative as required by Section 16, Rule 3 of the Rules of Court. On November 22, 2002, the court issued an order directing Aquino to secure the appointment of an administrator or executor of the estate of Oscar Casa in order that the appointee be substituted in lieu of the said deceased.
On February 26, 2003, Aquino filed a pleading entitled "Appointment of Administrator" signed by Candelaria, Jesus, Arlyn, Nestor, Edna, Benhur, Federico, Rafael and Ma. Eden, all surnamed Casa, on February 24, 2003, praying that one of them, Federico Casa, Jr., be designated as administrator of the estate of the deceased and that he be substituted for the deceased.
NOW THEREFORE, in compliance with the ORDER of the Probate Court, cited above, we, the legal heirs of the deceased OSCAR CASA, unanimously designate and appoint FEDERICO CASA, JR., as the ADMINISTRATOR of the property to be inherited by the deceased OSCAR CASA, in the WILL of the late LORETO SAMIA SAN JUAN, considering that FEDERICO CASA, JR., is the nearest accessible heir to attend the hearing of the probate of the will and is most competent to assume the responsibilities and the duties of the ADMINISTRATOR. We authorize him to represent us the heirs of the deceased OSCAR CASA, on the hearing of the probate of the will of the testatrix and to perform such duties as might be required by the Probate Court; to take possession of the properties designated in the WILL upon distribution by the appointed ADMINISTRATOR of the Estate of LORETO SAMIA SAN JUAN. (emphasis supplied)3
In compliance with the order of the court, Epifanio San Juan filed a "Motion to Declare Appointment of Administrator As Inadequate or Insufficient."4 He maintained that the heirs should present an administrator of the estate of Oscar Casa as the representative of the estate in the case.
In his reply, Aquino stated that, under Section 16, Rule 3 of the Rules of Court, the heirs of Oscar Casa may be substituted for the deceased without need for appointment of an administrator or executor of the estate. He also claimed that the court is enjoined to require the representative to appear before the court and be substituted within the prescribed period.
On December 2, 2003, the RTC issued an Order denying the motion of San Juan. Contrary to its Order dated November 22, 2002, the court held that there was, after all, no need for the appointment of an administrator or executor as substitute for the deceased devisee. It is enough, the court declared, that a representative be appointed as provided in Section 16, Rule 3 of the Rules of Court.5
San Juan received a copy of the December 2, 2003 Order on December 15, 2003 and filed, on December 30, 2003, a motion for reconsideration thereof. Citing the ruling of this Court in Lawas v. Court of Appeals,6 he averred that, under Section 16, Rule 3 of the Rules of Court, while the court may allow the heirs of the deceased to be substituted in cases of unreasonable delay in the appointment of an executor or administrator, or where the heirs resort to an extrajudicial settlement of the estate, priority is still given to the legal representative of the deceased, that is, the executor or administrator of the estate. Moreover, in case the heirs of the deceased will be substituted, there must be a prior determination by the probate court of who the rightful heirs are. He opined that this doctrine is in line with Article 1058 of the New Civil Code, and the provisions of Section 6, Rule 78 and Section 2, Rule 79 of the Rules of Court. In this case, however, the alleged heirs of Oscar Casa did not file any petition for the appointment of an administrator of his estate; hence, Federico Casa, Jr. is not qualified to be appointed as substitute for the deceased devisee. San Juan pointed out that the December 2, 2003 Order of the probate court contravened its August 14, 2002 and November 22, 2002 Orders.7
The motion for reconsideration was denied on February 27, 2004 where the probate court declared that it had carefully evaluated the arguments raised by the parties and found no compelling ground or cogent reason to set aside its December 2, 2003 Order.8 Petitioner received a copy of the Order on March 18, 2004.
On May 7, 2004, San Juan filed a Motion to Admit his second motion for reconsideration dated May 6, 2004, appending thereto the December 2, 2003 Order of the RTC.9 He cited Torres, Jr. v. Court of Appeals,10 where it was held that the purpose behind the rule on substitution of parties is the protection of the right of every party to due process, to ensure that the deceased party would continue to be properly represented in the suit through the duly appointed legal representative of his estate. The need for substitution of heirs is based on the right to due process accruing to every party in any proceeding, and the exercise of judicial power to hear and determine a cause presupposes that the trial court acquires jurisdiction over the persons of the parties.
San Juan emphasized that it is only in the absence of an executor or administrator that the heirs may be allowed by the court to substitute the deceased party. He averred that the purported heirs simply agreed among themselves to appoint a representative to be substituted for the deceased, which is contrary to the requirement of a prior hearing for the court to ascertain who the rightful heirs are. The Orders of the Court dated December 2, 2003 and February 27, 2004 may be used by purported heirs in order to "inherit" properties from estates of deceased parties, which will then allow the rules of procedure to be used as an instrument for fraud and undermining due process.11 San Juan reiterated the rulings of this Court in Dela Cruz v. Court of Appeals12 and Lawas v. Court of Appeals,13 that court proceedings conducted or continued without a valid substitution of a deceased party cannot be accorded validity and binding effect. He prayed that the February 27, 2004 Order be reconsidered and a new order be issued as follows:
(a) declaring the "Appointment of Administrator" dated February 14, 2003 insufficient or inadequate compliance with the rules of procedure on substitution of a deceased party;
(b) directing petitioner to secure from the appropriate court the appointment of an administrator of the estate of the deceased Oscar Casa; and
(c) directing that further proceedings in the case be deferred until after the substitution of the deceased Oscar Casa by the court-appointed administrator or executor of his estate.
Oppositor prays for other and further reliefs which may be just and equitable.14
On June 11, 2004, the probate court issued an order denying the second motion for reconsideration of San Juan. It noted that the motion merely reiterated the same arguments in his first motion for reconsideration which had already been passed upon. Citing the rulings in Montañano v. Suesa15 and Riera v. Palmanori,16 it concluded that there was no need for the appointment of an administrator of the estate of the deceased Oscar Casa at that stage of the proceedings since a legatee is not considered either as an indispensable or necessary party in the probate of a will.17
When San Juan received a copy of the June 11, 2004 Order of the trial court, he filed, on July 23, 2004, a motion for reconsideration thereof. He took exception to the probate court's reliance in the Montañano and Riera cases, as claiming that said rulings were not relevant to the issue of the validity of the appointment of Federico Casa Jr., by the alleged heirs of Oscar Casa, as administrator and substitute for the deceased devisee. He insisted that the cases dealt only with the question of whether or not the probate court can rule on the validity of the provisions of the will; they do not involve the same issue presented by the oppositor, namely, whether or not a substitution of a legatee under the will who died during the probate proceedings may be done by simply submitting an "Appointment of Administrator," or whether or not there is a need for a deceased legatee to be substituted by his/her duly appointed legal representative or administrator of his estate.
San Juan further posited that the estate court, sitting as a probate court, does not only decide on the questions of identity and testamentary capacity of the testator and the due execution of the will; it is likewise charged with the settlement of the estate of the testator after the will has been approved. Thus, the probate court must not only determine the validity of the will, but also the rightful heirs, legatees and devisees for the purpose of settling the estate of the testator.18
Aquino opposed the motion, contending that it was, in fact, a third motion for reconsideration, a prohibited pleading under Section 3, Rule 37 of the 1997 Rules of Civil Procedure.19
On September 8, 2004, the probate court issued an Order sustaining Aquino's argument and denied the motion for reconsideration of San Juan.20
San Juan, now petitioner, filed a petition for certiorari with the CA on November 22, 2004 for the nullification of the orders issued by the probate court on the following grounds:
A. THE RESPONDENT REGIONAL TRIAL COURT OF QUEZON CITY GRAVELY ABUSED ITS DISCRETION WHICH AMOUNTS TO LACK, OR IN EXCESS, OF JURISDICTION IN RULING THAT THE "APPOINTMENT OF ADMINISTRATOR" DATED FEBRUARY 14, 2003 MADE BY PRIVATE RESPONDENT IS IN ACCORDANCE WITH THE RULES ON CIVIL PROCEDURE ON PROPER SUBSTITUTION OF PARTIES.
B. THE RESPONDENT REGIONAL TRIAL COURT OF QUEZON CITY GRAVELY ABUSED ITS DISCRETION WHICH AMOUNTS TO LACK, OR IN EXCESS, OF JURISDICTION IN DENYING DUE COURSE TO PETITIONER'S MOTION FOR RECONSIDERATION ON THE GROUND THAT SAID MOTION IS A THIRD MOTION FOR RECONSIDERATION WHICH IS A PROHIBITED PLEADING UNDER SEC. 5, RULE 37 OF THE RULES OF COURT.21
On December 1, 2004, the CA dismissed the petition on the ground that it was filed beyond the 60-day period counted from notice to petitioner of the trial court's February 27, 2004 Order. The appellate court declared that the May 6, 2004 motion for reconsideration of petitioner was a pro forma motion because it was a second motion for reconsideration which sought the same relief as the first motion, hence, did not toll the running of the 60-day period.22 The appellate court cited the ruling of this Court in University of Immaculate Concepcion v. Secretary of Labor and Employment.23
Petitioner filed a motion for reconsideration of the resolution of the CA, contending that the orders sought to be reconsidered by him were interlocutory, hence, cannot be considered pro forma or forbidden by the Rules of Court. He cited the rulings of this Court in Dizon v. Court of Appeals,24 Philgreen Trading Construction Corporation v. Court of Appeals,25 and the cases cited in the latter decision.26 However, on February 24, 2005, the CA resolved to deny the motion of petitioner.27
Petitioner now seeks relief from this Court, via a petition for review on certiorari, for the reversal of the resolutions of the appellate court. He raises the following issues:
(A)
WHETHER OR NOT THE SIXTY-DAY PERIOD FOR FILING A PETITION FOR CERTIORARI UNDER RULE 65 OF THE RULES OF COURT IS RECKONED FROM NOTICE OF DENIAL OF THE FIRST MOTION FOR RECONSIDERATION OF AN INTERLOCUTORY ORDER EVEN THOUGH A SECOND AND THIRD MOTION FOR RECONSIDERATION (WHICH ARE NOT PROHIBITED MOTIONS) OF THE SAME INTERLOCUTORY ORDER HAD BEEN FILED AND WERE LATER DENIED.
(B)
WHETHER OR NOT A PERSON NOMINATED AS "ADMINISTRATOR" BY PURPORTED HEIRS OF A DEVISEE OR LEGATEE IN A WILL UNDER PROBATE MAY VALIDLY SUBSTITUTE FOR THAT DEVISEE OR LEGATEE IN THE PROBATE PROCEEDINGS DESPITE THE FACT THAT SUCH "ADMINISTRATOR" IS NOT THE COURT-APPOINTED ADMINISTRATOR OF THE ESTATE OF THE DECEASED DEVISEE OR LEGATEE.28
On the first issue, petitioner avers that the reckoning of the 60-day period for filing a petition for certiorari under Rule 65 of the Rules of Court from the notice of denial of the first motion for reconsideration is applicable only if the subject of the petition is a judgment, final resolution, or order. It does not apply if the subject of the petition is merely an interlocutory order. He points out that the reason for this is that only one motion for reconsideration of a judgment or final order is allowed under Section 5, Rule 37 of the Rules of Court. A second motion for reconsideration of a judgment or final order is a prohibited pleading; hence, the period for filing a petition for certiorari may not be reckoned from notice of denial of such second and prohibited motion for reconsideration. Petitioner asserts that a second (or even a third) motion for reconsideration of an interlocutory order is not prohibited; hence, the 60-day period for filing a petition for certiorari may be reckoned from notice of denial of subsequent motions for reconsideration.
Petitioner further claims that the Orders dated December 2, 2003, February 27, 2004, June 11, 2004 and September 8, 2004 issued by the RTC are only interlocutory orders. They deal solely with the issue concerning the proper substitution of the deceased Oscar Casa who is one of the devisees and legatees named in the purported will of the testatrix, Loreto San Juan, which is the subject matter of the probate proceedings pending with the respondent court. Said orders did not terminate or finally dispose of the case but left something to be done by the respondent court before the case is finally decided on the merits. The assailed orders do not go into the merits of the probate case, particularly on the due execution and validity of the will. It pertains only to the proper substitution of the parties. Thus, the orders are not final orders from which no second or third motion for reconsideration may be filed.29 It cannot also be said that the second motion for reconsideration did not toll the running of the reglementary period for filing a petition for certiorari, considering that there is no prohibition in the filing of a second motion for reconsideration of an interlocutory order. Furthermore, there is no intention on the part of petitioner to delay proceedings before the lower court when he filed the third motion for reconsideration, as he only sought to correct the probate court's patently erroneous application of the law. Petitioner emphasizes that he filed the petition for certiorari with the CA in view of the grave abuse of discretion which amounted to lack of or excess of jurisdiction committed by respondent trial court when it wrongfully assumed in its Order denying the third motion for reconsideration that the order sought to be reconsidered is a final order on the merits of the case and that the motion for reconsideration is a third motion for reconsideration of a final order.30
The petition is denied for lack of merit.
We agree with the ruling of the CA that the petition for certiorari filed by petitioner in the appellate court was time-barred. However, the raison d'etre for its ruling is incorrect.
Contrary to the ruling of the CA, the proscription against a pro forma motion applies only to a final resolution or order and not to an interlocutory one. The ruling of this Court in University of Immaculate Concepcion v. Secretary of Labor and Employment31 involved a final order of the NLRC and not an interlocutory order.
In this case, the December 2, 2003 Order of the trial court denying the motion of petitioner to consider insufficient or inadequate respondent's compliance with its November 22, 2002 Order is interlocutory. The order does not finally dispose of the case, and does not end the task of the court of adjudicating the parties' contentions and determining their rights and liabilities as regards each other but obviously indicates that other things remain to be done. Such order may not be questioned except only as part of an appeal that may eventually be taken from the final judgment rendered in the case.32 It bears stressing however that while the motion for reconsideration filed by petitioner assailing the December 2, 2003 Order of the trial court based on the same grounds as those alleged in his first motion is not pro forma, such second motion for reconsideration can nevertheless be denied on the ground that it is merely a rehash or a mere reiteration of grounds and arguments already passed upon and resolved by the court. Such a motion cannot be rejected on the ground that a second motion for reconsideration of an interlocutory order is forbidden by law or by the Rules of Court.33
Section 4, Rule 65 of the Rules of Civil Procedure as amended by the resolution of the Court in Bar Matter No. 00-2-03-SC which took effect on September 1, 2000, reads:
Sec. 4. Where and when petition filed. – The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of the said motion.
The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in the aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, unless otherwise provided by law or these rules, the petition shall be filed in and cognizable only by the Court of Appeals.
No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding fifteen (15) days.
Thus, there are three essential dates that must be stated in a petition for certiorari brought under Rule 65 of the Rules of Court for the nullification of a judgment, resolution or order: (1) the date when notice of the judgment, resolution or order was received; (2) when a motion for a new trial or reconsideration of the judgment, order or resolution was submitted; and (3) when notice of the denial thereof was received by petitioner.
The requirement of setting forth the three (3) dates in a petition for certiorari under Rule 65 of the Rules of Court is for the purpose of determining its timeliness, considering that a petition is required to be filed not later than 60 days from notice of the judgment, order or resolution sought to be nullified.34
We agree with the ruling of the CA that the petition for certiorari filed by petitioner with the CA on November 22, 2004 was filed beyond the 60-day period therefor. Petitioner received, on March 18, 2004, the February 27, 2004 Order of the court denying his motion for reconsideration of the December 2, 2003 Order. Petitioner had 60 days from March 18, 2004 or until May 17, 2004 within which to file his petition for certiorari. However, petitioner filed his petition for certiorari with the CA only on November 22, 2004.
The 60-day period should not be reckoned from petitioner's receipt on June 11, 2004 of the denial of his May 7, 2004 second motion for reconsideration. The 60-day period shall be reckoned from the trial court's denial of his first motion for reconsideration, otherwise indefinite delays will ensue.35
We note that the parties articulated their stance in their respective pleadings not only on the timeliness of the petition for certiorari in the CA but also on the validity of the assailed December 2, 2003 Order of the trial court. Ordinarily, in view of the dismissal of the petition because it was time-barred, the Court will no longer delve into and resolve the other issues raised in the petition. However, in this case, we find it appropriate and necessary to resolve once and for all the issue of whether there is a need for the appointment of an administrator of the estate of Oscar Casa, or whether it is enough that he be substituted by his heirs.
Section 16, Rule 3 of the 1997 Rules of Civil Procedure reads:
Sec. 16. Death of party; duty of counsel. – Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel to comply with this duty shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail to appear within the specified period, the court may order the opposing party, within a specified time, to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs.
The rule is a revision of Section 17, Rule 3 of the Rules of Court which reads:
Death of party. – After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and to be substituted for the deceased, within a period of thirty (30) days, or within such time as may be granted. If the legal representative fails to appear within said time, the court may order the opposing party to procure the appointment of a legal representative of the deceased within a time to be specified by the court, and the representative shall immediately appear for and on behalf of the interest of the deceased. The court charges involved in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint guardian ad litem for the minor heirs.36
The second paragraph of the rule is plain and explicit: the heirs may be allowed to be substituted for the deceased without requiring the appointment of an administrator or executor. However, if within the specified period a legal representative fails to appear, the court may order the opposing counsel, within a specified period, to process the appointment of an administrator or executor who shall immediately appear for the estate of the deceased.37 The pronouncement of this Court in Lawas v. Court of Appeals38 (relied upon by petitioner), that priority is given to the legal representative of the deceased (the executor or administrator) and that it is only in case of unreasonable delay in the appointment of an executor or administrator, or in cases where the heirs resort to an extrajudicial settlement of the estate that the court may adopt the alternative of allowing the heirs of the deceased to be substituted for the deceased, is no longer true.39 In Gochan v. Young,40 a case of fairly recent vintage, the Court ruled as follows:
The above-quoted rules, while permitting an executor or administrator to represent or to bring suits on behalf of the deceased, do not prohibit the heirs from representing the deceased. These rules are easily applicable to cases in which an administrator has already been appointed. But no rule categorically addresses the situation in which special proceedings for the settlement of an estate have already been instituted, yet no administrator has been appointed. In such instances, the heirs cannot be expected to wait for the appointment of an administrator; then wait further to see if the administrator appointed would care enough to file a suit to protect the rights and the interests of the deceased; and in the meantime do nothing while the rights and the properties of the decedent are violated or dissipated.
The Rules are to be interpreted liberally in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding. They cannot be interpreted in such a way as to unnecessarily put undue hardships on litigants. For the protection of the interests of the decedent, this Court has in previous instances recognized the heirs as proper representatives of the decedent, even when there is already an administrator appointed by the court. When no administrator has been appointed, as in this case, there is all the more reason to recognize the heirs as the proper representatives of the deceased. Since the Rules do not specifically prohibit them from representing the deceased, and since no administrator had as yet been appointed at the time of the institution of the Complaint with the SEC, we see nothing wrong with the fact that it was the heirs of John D. Young, Sr. who represented his estate in the case filed before the SEC. (Emphasis supplied)41
The heirs of the estate of Oscar Casa do not need to first secure the appointment of an administrator of his estate, because from the very moment of his death, they stepped into his shoes and acquired his rights as devisee/legatee of the deceased Loreto San Juan. Thus, a prior appointment of an administrator or executor of the estate of Oscar Casa is not necessary for his heirs to acquire legal capacity to be substituted as representatives of the estate.42 Said heirs may designate one or some of them as their representative before the trial court.
Hence, even on the threshold issue raised in the RTC and in the petition for certiorari in the CA, the assailed order of the RTC is correct.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. Costs against petitioner.
SO ORDERED.
Panganiban, C.J., Ynares-Santiago, Austria-Martinez, Chico-Nazario, J.J., concur.
Footnotes
1 Penned by Associate Justice Mario L. Guarina III, with Associate Justices Marina L. Buzon and Santiago Javier Ranada, concurring; rollo, pp. 41-42.
2 Rollo, p. 44.
3 Id. at 207-208.
4 Id. at 47-48.
5 Id. at 49.
6 230 Phil. 261 (1986).
7 Rollo, pp. 50-59.
8 Id. at 60.
9 Id. at 65-66.
10 344 Phil. 348 (1997).
11 Rollo, pp. 65-66.
12 No. L-41107, February 28, 1979, 88 SCRA 695.
13 Supra note 6.
14 Rollo, pp. 69-70.
15 14 Phil. 676 (1909).
16 40 Phil. 105 (1920).
17 Rollo, pp. 72-74.
18 Id. at 78-79.
19 Id. at 88.
20 Id.
21 Id. at 90.
22 Id. at 41-42.
23 G.R. No. 143557, June 25, 2004, 432 SCRA 601.
24 G.R. No. 96296, June 18, 1992, 210 SCRA 107.
25 338 Phil. 433 (1997).
26 Rollo, pp. 122-127.
27 Id. at 44.
28 Id. at 15-16.
29 Id. at 17-18.
30 Id. at 21.
31 Supra note 23.
32 Investments, Inc. v. Court of Appeals, G.R. No. L-60036, January 27, 1987, 147 SCRA 334, 340.
33 Philgreen Trading Construction Corporation v. Court of Appeals, supra note 25, at 440.
34 Seastar Marine Services, Inc. v. Bul-an, G.R. No. 142609, November 25, 2004, 444 SCRA 140, 152; Lapid v. Laurea, G.R. No. 139607, October 28, 2002, 391 SCRA 277, 284; Santos v. Court of Appeals, 413 Phil. 41, 53 (2001).
35 State Bank & Trust Co. v. Nashville Trust Co., 202 S.W. 68.
36 Cited in Lawas v. Court of Appeals, supra note 6, at 177-178.
37 Feria, 1997 Rules of Civil Procedure, Annotated, Vol. 1, 2001 edition, p. 247.
38 Supra.
39 Herrera, Remedial Law, Vol. I (2000 ed.) 402.
40 G.R. No. 131889, March 12, 2001, 354 SCRA 207.
41 Id. at 220-221.
42 Speed Distributing Corporation v. Court of Appeals, G.R. No. 149351, March 17, 2004, 425 SCRA 691, 708-709.
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