BONILLA V. BARCENA (REMEDIAL)

While it is true that a person who is dead cannot sue in court, yet he can be substituted by his hers in pursuing the case up to its completion.

Records show that the death of Fortunata Barcena took place on 9 July 1975 while the complaint was filed on 31 March 1975, which means that when the complaint was filed, Fortunata was still alive, and therefore, the court had acquired jurisdiction over her person.

If thereafter she died, the Rules of Court prescribes the procedure whereby a party who died during the pendency of the proceeding can be substituted. Under Section 16, Rule 3, "whenever a party to a pending case dies... it shall be the duty of his attorney to inform the court promptly of such death... and to give the mane and residence of his executor, administrator, guardian, or other legal representatives."

This duty was complied with by the counsel for the deceased plaintiff when he manifested client's death before the court and asked for the proper substitution of parties. The respondent court however, instead of allowing the substitution, dismissed the complaint on the ground that a person has no legal personality to sue - this is a grave error.

When Fortunata died, her claim or right to the parcels of land in litigation was not extinguished by her death but was transmitted to her heirs upon her death. Her heirs have thus acquired interest in the properties in litigation and became parties in interest in the case. There is therefore, no reason for the respondent court not to allow their substitution as parties in interest for the deceased plaintiff.

The question as to whether an action survives or not depends on the nature of the action and the damage sued for. In the causes of action which survive the wrong complained affects primarily and principally property and property rights, the injuries to the person being merely incidental, while in the causes of action which do not survive the injury complained of is to the person, the property, and rights of property affected being incidental.

Following the foregoing criterion, the claim of the deceased plaintiff which is an action to quiet title over the parcels of land in litigation affects primarily and principally property and property rights and therefore, is one that survives even after her death. It is therefore, the duty of the respondent court to order the legal representative of the deceased plaintiff to appear and to be substituted for her.

Under Section 17, Rule 3, it is even the duty of the court, if the legal representative fails to appear, to order the opposing party to procure the appointment of a legal representative of the deceased. In the instant care, the respondent court did not have to bother ordering the opposing party to procure the same because her counsel has not only asked that the minor children be substituted for her but also suggested that their uncle be appointed as guardian ad litem for them because their father is busy in Manila earning a living for the family. But the respondent court refused for substitution on the ground that the children were still minors and cannot sue in court - another grave error.

Precisely in the instant case, unquestionably, the respondent court has gravely abused its discretion in not complying with the clear provisions of the Rules.