PEREZ AND RAGUA V. CA (REMEDIAL)

We are convinced that the institution by respondents of their second complaint anchored on their claim that the bank breached its loan contracts with them by erroneously computing the actual and correct balance of their account when the petition for extrajudicial foreclosure of the real estate mortgage was filed by it designed to avert the dismissal of their complaint due to splitting causes of action and res judicata, following the dismissal of their first complaint and the dismissal of their appeal through their negligence. The SC is constrained to conclude that this was a last-ditch chance to resuscitate their lost cause, a brazen violation of the principle of res judicata.

SECTION 49. EFFECTS OF JUDGMENTS - The effect of a judgment or final order rendered by a court or judge of the Philippines, having jurisdiction to pronounce the judgment or order, may be as follows:

(b) In other cases the judgment or order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the case things and under the same title and in the same capacity.

(c) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.

Section 49(b) enunciates the first concept of res judicata known as BAR BY PRIOR JUDGMENT or ESTOPPEL BY JUDGMENT, which refers to a theory or matter that has been definitely and finally settled on its merits by a court of competent jurisdiction without fraud or collusion.

There are 4 essential requisites which must concur for the application of this doctrine:

1. finality of the former judgment;
2. the court which rendered it had jurisdiction over the subject matter and the parties;
3. it must be a judgment on the merits; and
4. there must be, between the first and second actions

• identity of parties;
• identity of subject matter; and
• identity of causes of action.

A judgment or order is on the merits of the case when it determines the rights and liabilities of the parties based on the ultimate facts as disclosed by the pleadings or issues presented for trial. An order of the trial court on the ground that the complaint does not state a cause of action is a determination of the case on its merits. Such order, whether right or wrong bars another action based upon the same cause of action. The operation of the order as res judicata is not affected by a mere right of appeal where the appeal has not been taken or by an appeal which never has been perfected.

The ultimate test to ascertain identity of causes of action is whether or not the same evidence fully supports and establishes both the first and second cases. The application of the doctrine of res judicata cannot be excused by merely varying the form of the action or engaging a different method of presenting the issue.

Section 49(c) of Rule 39 enumerates the concept of CONCLUSIVENESS OF JUDGMENT. This is the second branch, otherwise known as COLLATERAL ESTOPPEL or ESTOPPEL BY VERDICT. This applies where, between the first case wherein judgment is rendered and the second case wherein such judgment is involved, there is no identity of causes of action.

If a particular point or question is in issue in the second action, and the judgment will depend on the determination of that particular point or question, a former judgment between the same parties will be final and conclusive in the second if that same point or question was in issue and adjudicated in the first suit; but the adjudication of an issue in the first case is not conclusive of an entirely different and distinct issue arising in the second.

More telling is the private respondents' failure to object to the extrajudicial foreclosure of the real estate mortgage and the sale at public auction; they even pleaded to be allowed to redeem the property after it had already been sold at public auction. Patently then, the respondents were proscribed from claiming that the foreclosure of the real estate mortgage was for an amount in excess of the balance of their account and that the sale at public auction was irregular/illegal.

If petitioner indeed felt that the assailed foreclosure proceedings were attended with any irregularity, he should have filed the appropriate action with the court. Instead, he offered to repurchase the subject properties without any condition or reservation. Nevertheless, he failed to comply with his undertaking and instead defaulted in his subsequent payments.

REDEMPTION IS INCONSISTENT WITH THE CLAIM OF INVALIDITY OF THE SALE. Redemption is an implied admission of the regularity of the sale and would estop the respondents from later impugning its validity on that ground. Thus, the private respondents' please for extensions of time to redeem the subject property are of the same genre.

The Order of the Court dismissing the first complaint is a judgment of the case on the merits.

The attempt of the respondents in their second complaint to avoid the application of the principle of res judicata by claiming the nature of their account on the ground therefor and their legal theory cannot prosper. Their second complaint cannot be maintained without trying the facts material to the first case, and the second case cannot be maintained if all disputed factual issues raised in the first complaint are considered in favor of the bank.

the principle of res judicata applies when the opportunity to raise in issue the first complaint exists but the plaintiff failed to do so. Indeed, if the pleading of a different legal theory would have convinced the trial court to decide a particular issue in the first action, which, with the use of diligence, the plaintiffs could have raised therein but failed to do, so they are barred by res judicata. nor do legal theories operate to constitute a cause of action. New legal theories do not amount to a new cause of action so as to defeat the application of the principle of res judicata.

It bears stressing that a party cannot divide the grounds for recovery. A plaintiff is mandated to place in issue in his pleading all the issues existing when the suit began. a lawsuit cannot be tried piecemeal. The plaintiff is bound to set forth in his first action every ground for relief which he claims to exist and upon which he relied, and cannot be permitted to rely upon them by piecemeal in successive action to recover for the same wrong or injury.

A party seeking to enforce a claim, legal or equitable must present to the court either by the pleadings or proofs, or both on the ground upon which to expect a judgment in his favor. He is not at liberty to split up his demands and prosecute it by piecemeal or present only a portion of the grounds upon which a special relief is sought and leave the rest to the presentment in a second suit if the first fails. There would be no end to litigation if such piecemeal presentation is allowed.

SPLITTING A SINGLE CAUSE OF ACTION consists in dividing a single or indivisible cause of action into several parts or claims and instituting 2 or more actions tehrein. A single cause of action or entire claim or demand cannot be split up or divided so as to be made the subject of 2 or more different actions.

A single act or omission may be violative of various rights at the same time, such as when the act constitutes a violation of separate and distinct legal obligations. The violation of each of these rights is a cause of action in itself. However, if only one right may be violated by several acts or omissions, there would only be one cause of action. Otherwise stated, if 2 separate and distinct primary rights are violated by one and the same wrong; or if the single primary right should be violated by 2 distinct and separate legal wrongs; or when the 2 primary rights are each broken by a separate and distinct wrongs; in either case, 2 causes of action would result. Causes of action which are distinct and independent, though arising out of the same contract, transaction, or state of fact may be sued separately, recovery on one being no bar to subsequent actions on the others.

The mere fact that the same relief is sought in the subsequent action will not render the judgment in the prior action as res judicata. Causes of action are not distinguishable for purposes of res judicata by difference in the claims for relief.

MORTA V. BAGAGNAN (REMEDIAL)

Unreasonable delay in resolving motions opens a judge to administrative sanctions. Likewise, a sheriff is administratively liable for delayed implementation of a writ of execution and failure to render the required reports thereon. These are necessary lessons from the time-honored principle that "justice delayed is justice denied."

Time and again, we have impressed upon those tasked to implement court orders and processes to see to it that the final stage in the litigation process - the execution of judgment - be carried out promptly. they should exert every effort and indeed consider it ther bounden duty to do so, in order to ensure the speedy and efficient administration of justice. A decision that is left unexecuted or delayed indefinitely because of the sheriff's inefficiency or negligence remains an empty victory on the part of the prevailing party. FOr this reason, any inordinate delay in the execution of judgment is truly deplorable and cannot be countenanced by the court.

There is no mistaking the mandatory character of the period described under Section 14 of Rule 39 of the Revised Rules of Court on the return of a writ of execution, which reads:

SECTION 14. RETURN OF WRIT OF EXECUTION - The writ of execution shall be returnable to the court issuing it immediately after the judgment has been satisfied in part or in full. If the judgment cannot be satisfied in full within 30 days immediately after his receipt of the writ, the officer shall report to the court ans state the reason therefor. Such writ shall continue in effect during the period within which the judgment may be enforced by motion. The officer shall make a report to the court every 30 days on the proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires. The returns or periodic reports shall set forth the whole of the proceedings taken, and shall be filed with the court and copies thereof promptly furnished the parties.

The excuse proffered by respondent sheriff - heavy workload - cannot absolve him from administrative sanctions. As an officer of the court, he should at all times show a high degree of professionalism in the performance of his duties. He has failed to observe that degree of dedication required of him as a sheriff.

Sheriff is found guilty of simple neglect of duty. This infraction is punishable by suspension of 1 month and 1 day to 6 months. But under the circumstances, we find it inadvisable to suspend respondent sheriff, considering that his work would be left unattended in his absence. Instead, we adopt our previous ruling in Aquino v. Lavadia, imposing a fine equivalent to his 1 month salary, so that he can finally implement the subject writ and perform his other duties.

FAJARDO V. QUITALIG (REMEDIAL)

As frontline officials of the justice system, sheriffs must always strive to maintain public trust in the performance of their duties. Hence, they must see to it that the final stage in the litigation process is completed without unnecessary delay.

A review of the record of this case revels that respondent enforced the writ of execution dated 7 March 2000 only on 24 August 2000 as shown by his 25 August 2000 Report of Service.

SECTION 14. RETURN OF WRIT OF EXECUTION - The writ of execution shall be returnable to the court issuing it immediately after the judgment has been satisfied in part or in full. If the judgment cannot be satisfied in full within 30 days after receipt of writ, the officer shall report to the court and state the reason therefor. Such writ shall continue in effect during the period within which the judgment may be enforced by motion. The officer shall make a report to the court every 30 days on the proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires. The returns or periodic reports shall set forth the whole of the proceedings taken, and shall be filed with the court and copies hereof promptly furnished the parties.

Evidently, respondent was not only remiss in his implementation of the writ, but likewise derelict in his submission of the returns thereof.

We find respondent's explanation to be utterly wanting. He is guilty of dereliction of his duty as a sheriff, because he failed to:

1. execute the writ within 30 days from his receipt thereof;
2. submit his report or service within the same period;
3. make periodic reports to the MTCC until the judgment was fully satisfied; and
4. furnish the parties with copies of the reports.

Clearly, the actuations of respondent constitute disrespect, if not outright defiance of the MTCC's authority. In the absence of instructions to the contrary, a sheriff has the duty to execute a writ with reasonable celerity and promptness in accordance with its mandate.

BANEZ V. BANEZ (REMEDIAL)

ISSUE: Is an action for legal separation one where multiple appeals are allowed?

NO.

As held in Echaus v. CA, EXECUTION PENDING APPEAL is allowed when superior circumstances demanding urgency outweigh the damages that may result from the issuance of the writ. Otherwise, instead of being an instrument of solicitude and justice, the writ may well become a tool

In the case, considering the reasons cited by petitioner, we are of the view that there is no superior or urgent circumstance that outweighs the damage, which respondent would suffer if he were ordered to vacate the house. We note that petitioner did not refute respondent's allegations that she did not intend to use said house, and that she has 2 other houses in the US where she is a permanent resident, while he had none at all.

Merely putting up a bond is not sufficient reason to justify her plea for execution pending appeal. To do so would made execution routinary, the rule rather than the exception.

Multiple appeals are allowed in special proceedings, in actions for recovery of property with accounting, in actions for partition of property with accounting, in the special civil actions of eminent domain and foreclosure of mortgage. The rationale behind allowing more than one appeal in the same case is to enable the rest of the case to proceed in the event that a separate and distinct issue is resolved by the court and held to be final.

This holds true in an action for legal separation. The issues involved in the case will necessarily relate to the same marital relationship between the parties. The effects of legal separation such as entitlement to live separately, dissolution and liquidation of the absolute community or conjugal partnership, and custody of the minor children, follow from the decree of legal separation. They are not separate and distinct matters that may be resolved by the court and become final prior to or apart from the decree of legal separation, Rather, they are mere incidents of legal separation.

Petitioner's alternative prayers that in case we do not dismiss the appeal, we return the records to the trial court and require respondent to file a record on appeal or we return the records to the trial court and retain only the pleadings and orders relevant to the appeal, are untenable. If we grant the first, we are effectively saying that the instant case is one involving multiple appeals, which it is not. If we allow the second, we are effectively applying by analogy Section 6, Rule 44 and Section 6 Rule 135 of the Rules of Court, without petitioner showing support therefor in law or jurisprudence.

RADIOWEALTH FINANCE V. DEL ROSARIO (REMEDIAL)

When a DEMURRER TO EVIDENCE granted by a trial court is reversed on appeal, the reviewing court cannot remand the case for further proceedings. Rather, it should render judgment on the basis of the evidence proffered by the plaintiff. Inasmuch as defendants in the present case admitted the due execution of the Promissory Note both in their answer and during the pretrial, the appellate court should have rendered judgment on the bases of that Note and on the other pieces of evidence adduced during the trial.

In the case at bar, the trial court, acting on respondent's demurrer to evidence, dismissed the Complaint on the ground that the plaintiff had adduced mere hearsay evidence. However, on appeal, the appellate court reversed the trial court because the genuineness and the due execution of the disputed evidence had in fact been admitted by defendants.

Applying Rule 33, Section 1 of the Rules of Court, the CA should have rendered judgment on the basis of the evidence submitted by petitioner and not remand it. A remand is not only frowned upon by the Rules, it is also logically unnecessary on the basis of the facts on record.

PHIL PHOSPHATE FERTILIZER V. CIR (REMEDIAL, TAX)

If the State expects its taxpayers to observe fairness and honesty in paying their taxes, so must it apply the same standards against itself in refunding excessive payments. When it is undisputed that a taxpayer is entitled to a refund, the State should not invoke technicalities to keep money not belonging to it. No one, not even the State, should enrich oneself at the expense of another.

Sec. 1, Rule 37 of the Rules of Court provides as follows:

SECTION 1. Grounds of and period for filing motion for new trial or reconsideration - Within the period for taking an appeal, the aggrieved party may move for the trial court to set aside the judgment or final order and grant a new trial for one or more of the following causes materially affecting the substantial rights of said party:

1. Fraud, accident, mistake, or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or
2. Newly discovered evidence, which could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result.

It is true that petitioner could not move for new trial on the basis of newly discovered evidence because in order to have a new trial on the basis of newly discovered evidence, it must be proved that:

1. the evidence was discovered after the trial;
2. such evidence could not have been discovered and produced at the trial with reasonable diligence;
3. it is material, not merely cumulative, corroborative, or impeaching; and
4. it is of such weight that if admitted, will probably change the judgment.

This does not mean however, that petitioner is altogether barred from having a new trial. As pointed out by Judge Acosta, the reasons put forth by petitioner should fall under mistake or excusable negligence.

The mistake that is allowed in Rule 37 is one which ordinary prudence could not have guarded against. Negligence to be excusable must also be one which ordinary diligence and prudence could not have guarded against and by reason of which the rights of an aggrieved party have probably been impaired. the test of excusable negligence is whether a party has acted with ordinary prudence while transacting important business.

In this case, it cannot be said that petitioner did not act with ordinary prudence in claiming its refund with the CTA, in light of its previous cases with CTA which did not require invoices and the non-mandatory nature of the CTA circular.

It is borne by the records however that in its first motion for reconsideration duly filed on time, petitioner had already prayed that it be allowed to present and offer evidence deemed lacking by CTA in its Decision of 11 August 1998. Thus, while it named its pleading as a Motion for New Trial only in its motion dated 25 January 1999, petitioner should not be deemed to have moved for new trial only at such time.

PEOPLE V. LI KA KIM ALIAS ED (REMEDIAL)

The requisites of NEWLY DISCOVERED EVIDENCE in order to justify a new trial are that:

1. the evidence is discovered after trial;
2. such evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence; and
3. the evidence is material, not merely cumulative, corroborative, or impeaching, and of such weight that if admitted, would likely change the judgment.

NOT ONE OF THE REQUISITES MENTIONED IS ATTENDANT. Appellant's PASSPORT could have easily been presented during the trial. then, too, the presentation of appellant's passport would hardly be material to the outcome of the case. Appellant was positively identified by the prosecution witnesses as being the perpetrator of the crime.

There is merit, however, in appellant's contention that the court a quo erred in imposing the penalty of death. Rule 110 of the Rules of Court on Criminal Procedure requires the recitation in the information of aggravating or qualifying circumstances in order to be appreciated as such. The use of a motor vehicle considered by the trial court in decreeing death penalty is inappropriate, that aggravating circumstance not having been aptly alleged in the Information.

The requirements are mandatory not only to afford the accused the right to object to the presentation of evidence showing such aggravating circumstances not so alleged but also to preclude the court from even taking such aggravating circumstances into account.

MERCURY DRUG V. CA (REMEDIAL)

Rule 38. Section 1. Petition for relief from judgment, order, or other proceedings - When a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through fraud, accident, mistake, or excusable negligence, he may file a petition in such court and in the same case praying that that the judgment, order, or proceeding be set aside.

Section 3. Time for filing petition; contents and verification - A petition provided for in either of the preceding sections of the Rule must be verified, filed within 60 days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and not more than 6 months after such judgment or final order was entered or such proceeding was taken; and must be accompanied with affidavits showing fraud, accident, mistake, or excusable negligence relied upon, and the facts constituting the petitioner's good and substantial cause of action or defense, as the case may be.

A PETITION FOR RELIEF FROM JUDGMENT is an equitable remedy that is allowed only in exceptional cases when there is no other available or adequate remedy. When a party has another remedy available to him, which may either be a motion for new trial or appeal from an adverse decision of the trial court, and he was not prevented by fraud, accident, mistake, or excusable negligence from filing such motion or taking such appeal, he cannot avail himself of this petition.

In order for a petition for relief to be entertained by the court, the petitioner must satisfactorily show that he has faithfully and strictly complied with the provision of Rule 38. It is also incumbent upon the petitioner to show that the said petition was filed within the reglementary period specified in Section 3, Rule 38 (within 60 days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and not more than 6 months from entry of judgment). and the rule is that the reglementary period is reckoned from the time the party's counsel receives notice of the decision for notice to counsel of the decision is notice to party for purposes of Section 3 of Rule 38.

In the present case, the petition for relief, which was filed over 60 days from notice of their counsel, was filed out of time. The SC has consistently held that the failure of a party's counsel to notify him on time of the adverse judgment to enable him to appeal therefrom is negligence, which is not excusable. However, notice sent to counsel of record is binding upon the client and the neglect or failure of counsel to inform him of an adverse judgment resulting in the loss of his right to appeal is not a ground for setting aside a judgment valid and regular on its face.

The case of People's Homesite is not squarely in point. In said case, we gave due course to a petition for relief from judgment despite the fact that it was filed out of time, the lawyer having failed to inform his clients of the scheduled hearing of the case which was heard in their absence. When judgment was rendered against them, their lawyer failed to take any steps to protect the interest of their clients. In giving due course to the petition for relief, this Court found that "there was something fishy with the actuations" of their lawyer which deprived the petitioners of their day in court. Consequently, we ruled that the client was denied due process and gave due course to their petition.

FERNANDEZ V. CA (REMEDIAL)

Rule 41. Section 3 - Period of ordinary appeal - The appeal shall be taken within 15 days from notice of the judgment or final order appealed from. where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within 30 days from notice of the judgment or final order.

The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed.

Fernandez's motion for new trial was filed out of time. The 15-day period for filing a motion for new trial cannot be extended. As early as Habaluyas v. Japzon, cited in Naguiat v. IAC, and reiterated in Tung Chin Hui v. Rodriguez, motions for extension of time to file a motion for new trial or reconsideration may no longer be filed before all courts, lower than the Supreme Court. The rule in Habaluyas applies even if the motion is filed before the expiration of the period sought to be extended because the 15-day period for filing a motion for new trial or reconsideration with said court is non-extendible.

Thus, motions for extension of time to file a motion for new trial or reconsideration may be filed only in connection with cases pending before the Supreme Court, which may, in its sound discretion, either grant or deny the extension requested. No such motion may be filed before any lower courts.

In sum, considering that a motion for new trial must be filed during the period for filing an appeal and that such period cannot be extended, Fernandez, by filing his motion for new trial beyond the period to appeal, had unwittingly sealed his fate and stripped himself of any further relief.

HUN HYUNG PARK V. EUNG WON CHOI (REMEDIAL)

The manner of verification for pleadings which are required to be verified such as a petition for review before the CA of an appellate judgment of the RTC is prescribed by Section 4, Rule 7 of the Rules of Court:

Section 4. Verification - Except when otherwise specifically required by law or rule, pleadings need not be verified under oath, verified or accompanied by affidavit.

A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records.

A pleading required to be verified which contains a verification based on "information and belief" or upon "knowledge, information and belief" or lacks a proper verification shall be treated as an UNSIGNED PLEADING.

VERIFICATION is not an empty ritual or a meaningless formality. Its import must never be sacrificed in the name of mere expedience or sheer caprice. For what is at stake is the matter of verity attested by the sanctity of an oath to secure an assurance that the allegations in the pleading have been made in good faith, or are true and correct and note merely speculative.

To sustain petitioner's explanation that the basis of verification is a matter of simple preference would trivialize the rationale and diminish the resoluteness of the rule. It would play on predilection and pay no heed in providing enough assurance of the correctness of the allegations.

Technicality aside, the petition is devoid of merit.

When a DEMURRER TO EVIDENCE is filed without leave of court, the whole case is submitted for judgment on the basis of the evidence for the prosecution as the accused is deemed to have waived the right to present evidence. At that juncture, the court is called upon to decide the case including its civil aspect, unless the enforcement of the civil liability by a separate civil action has been waived or reserved.

If the filing of a separate civil action has not been reserved or priorly instituted or the enforcement of civil liability is not waived, the trial court should, in case of conviction, state the civil liability or damages caused by the wrongful act or omission to be recovered from the accused by the offended party, if there is any.

For in acquittal, the accused may still be adjudged civilly liable. the extinction of the penal action does not carry with it the extinction of the civil action where

1. the acquittal is based on reasonable doubt as only preponderance of evidence is required;
2. the court declares that the liability of the accused is only civil; and
3. the civil liability of the accused does not arise from or is not based upon the crime of which the accused was acquitted.

The civil action based on delict may, however, be deemed extinguished if there is a finding on the final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist.

In case of A DEMURRER TO EVIDENCE filed with leave of court, the accused may adduce countervailing evidence if the court denies the demurrer. Such denial bears no distinction as to the 2 aspects of the case because there is a disparity of evidentiary value between the quanta of evidence in such aspects of the case. In other words, a court may not deny the demurrer as to the criminal aspect and at the same time grant the demurrer as to the civil aspect, for if the evidence so far presented is not insufficient to prove the crime beyond reasonable doubt, then the same evidence is likewise not insufficient to establish civil liability by mere preponderance of evidence.

On the other hand, if the evidence so far presented is insufficient as proof beyond reasonable doubt, it does not follow that the same evidence is insufficient to establish a preponderance of evidence. For if the court grants the demurrer, proceedings on the civil aspect of the case generally proceeds. The only recognized instance when an acquittal on demurrer carries with it the dismissal of the civil aspect is when there is a finding that the act or omission from which the civil liability may arise did not exist. Absent such determination, trial as to the civil aspect of the case must perforce continue.

If demurrer is granted and the accused is acquitted by the court, the accused has the right to adduce evidence on the civil aspect of the case unless the court also declares that the act or omission from which the civil liability may arise did not exist.

BERNARDO V. CA (REMEDIAL)

In fine, under the new RULE ON DEMURRER TO EVIDENCE, the accused has the right to file a demurrer after the prosecution has rested its case. If the accused obtained prior leave of court before filing his demurrer, he can still present evidence if his demurrer is denied. However, if he demurs without prior leave of court, or after his motion for leave is denied, he waives his right to present evidence and submits the case for decision on the basis of the evidence for the prosecution. This power to grant leave to the accused to file a demurrer is addressed to the sound discretion of the trial court. The purpose is to determine whether the accused in filing his demurrer is merely stalling the proceedings.

In the case at bar, petitioner admits that the trial court denied her motion for leave of court to file a demurrer to evidence. In such case, the only right petitioner has under Section 15, Rule 119 of the Rules of Court after having been denied leave to submit a demurrer is to adduce evidence in her defense. However, even without express leave of the trial court, nay, her motion for leave was denied, petitioner insisted on filing a demurrer instead of presenting evidence in her defense.

Judicial action to grant prior leave of court to file demurrer to evidence is discretionary upon the trial court. But to allow the accused to present evidence after he was denied prior leave of court to file demurrer is not discretionary. Once prior leave is denied and the accused still files his demurrer to evidence or motion to dismiss, the court no longer has discretion to allow the accused to present evidence. The only recourse left for the court is to decide the case on the basis of the evidence presented by the prosecution. and unless there is grave abuse thereof amounting to lack or excess of jurisdiction, which is not present in the instant case, the trial court's denial of prior leave to file demurrer to evidence or motion to dismiss may not be disturbed. However, any judgment of conviction by a trial court may still be elevated by the accused to the appellate court.

SPOUSES MESINA V. MEER (REMEDIAL)

After careful examination of the case, we resolve to deny the petition.

RELIEF FROM JUDGMENT is an equitable remedy and is allowed only under exceptional circumstances and only if fraud, accident, mistake, or excusable negligence is present. Where the defendant has other available or adequate remedy such as a motion for new trial or appeal from the adverse decision, he cannot avail himself of this remedy.

Under the 1997 Revised Rules of Civil Procedure, the PETITION FOR RELIEF must be filed within 60 days after the petitioner learns of the judgment, final order, or other proceeding to be set aside and must be accompanied with affidavits showing the fraud, accident, mistake, or excusable negligence relied upon, and the facts constituting the petitioner's good and substantial cause of action or defense, as the case may be. Most importantly, it must be filed with the same court which rendered the decision.

As correctly pointed out by the CA, the petitioners' allegation of extrinsic fraud should have been brought at issue in the MTC. If they truly believe that the default of the spouses Mesina prejudices their rights, they should have questioned this from the very beginning. Yet, they chose to participate in the proceedings ans actively presented their defense. And their efforts were rewarded as the MTC rules in their favor.

When the respondent appealed the case to the RTC, they never raised this issue. Even after the RTC reversed the finding of the MTC, and the CA sustained this reversal, petitioners made no effort to bring this issue for consideration. The SC will not allow petitioners, in guise of equity, to benefit from their own negligence.

INSULAR LIFE V. CA (REMEDIAL)

Sections 1 and 2, Rule 25 of the Rules of Court on the matter of WRITTEN INTERROGATORIES, state:

SECTION 1. INTERROGATORIES TO PARTIES, SERVICE THEREOF - Under the same conditions specified in Section 1 of Rule 24, any party may serve upon any adverse party written interrogatories to be answered by the party served...

SECTION 2. ANSWER TO INTERROGATORIES - The interrogatories shall be answered separately and fully in writing under oath. The answer shall be signed by the person making them, and the party upon whom the interrogatories have been served shall serve a copy of the answers on the party submitting the interrogatories 15 days after service of the interrogatories, unless the court on motion and notice and for good cause shown, enlarges or shortens the time.

The submission of interrogatories to parties under this rule is one of the five major procedural MODES OF DISCOVERY. Discovery in general, is defined as the disclosure of facts resting in the knowledge of the defendant, or as the production of deeds, writings, or things in his possession or power, in order to maintain the right or title of the party asking it, in a suit or proceeding.

In order to give life to the provisions on interrogatories, Section 5, Rule 29 states:

SECTION 5. FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS - If a party or an officer or managing agent of a party willfully fails to appear before the officer who is to take his deposition, after being served with a proper notice, or fails to serve answers to interrogatories submitted under Rule 25, after proper service of such interrogatories, the court on motion and notice, may strike out all or part of any pleading of that party, or dismiss the action or proceeding or any part thereof, o r enter a judgment by default against that party, and in its discretion, order him to pay reasonable expenses incurred by the other, including attorney's fees.

As private respondents failed to give their answers to the interrogatories, Insular filed a motion to dismiss the complaint and moved to declare the third party defendant in default, which was opposed by private respondents arguing that the modes of discovery should not be utilized as to, in effect, permit unrestrained "fishing expeditions."

The real question now before us is whether or not the trial court has committed grave abuse of discretion in its questioned order. Like the appellate court to which the matter has been initially addressed, we are not inclined to conclude that any such clear transgression has been committed by the court a quo.

GARCIA V. CA (REMEDIAL)

The petition is devoid of merit.

Sections 1 and 3 of Rule 34 of the Rules of Court provides:

Section 1. SUMMARY JUDGMENT FOR CLAIMANT - A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits for a summary judgment in his favor upon all or any part thereof.

Section 3. MOTION AND PROCEEDINGS THEREON - The motion shall be served at least 10 days before the time specified for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. After the hearing, the judgment sought shall be rendered forthwith if the pleading, depositions, and admissions on file together with the affidavits, show that, except as to the amount of damages, there is no genuine issue as to the material fact and that the moving party is entitled to a judgment as a matter of law.

A summary judgment is one granted upon motion by a party for an expeditious settlement of the case, there appearing from the pleadings, deposition,s admissions, and affidavits that there are no important questions or issues of fact posed (except as to the amount of damages) and therefore, the moving party is entitled to a judgment as a matter of law.

In the case under consideration, the pleadings and exhibits on record reveal that there exist genuine issues on material or pertinent facts sufficient to preclude a rendition of summary judgment, which call for trial on the merits.

MENDEZONA V. OZAMIZ (REMEDIAL)

A MOTION FOR NEW TRIAL upon the ground of newly discovered evidence is properly granted only where there is concurrence of the following requisites:

1. the evidence had been discovered after trial;
2. the evidence could not have been discovered and produced during trial even with the exercise of reasonable diligence; and
3. the evidence is material and not merely corroborative, cumulative, or impeaching and is of such weight that if admitted, would probably alter the result.

All 3 requisites must characterize the evidence sought to be introduced at the new trial.

SC finds that the requirement of reasonable diligence has not been met by the petitioners. As early as the pre-trial of the case, the name Judge Durias has already cropped up as a possible witness for the defendants, herein respondents. That the respondent chose not to present his is not an indicia per se of suppression of evidence, since a party in a civil case is free to choose who to present as his witness. Neither can Judge Durias' testimony in another case be considered as newly discovered evidence since the facts to be testified to by Judge Durias' which were existing before and during the trial, could have been presented by the petitioners at the trial The testimony of Judge Durias has been in existence waiting only to be elicited from him by questioning.

Factual findings of the appellate court are generally conclusive on the SC which is not a trier of facts. It is not the function of the SC to analyze or weigh evidence all over again. However, this rule is not without exception. If there is a showing that the appellate court's findings of facts complained of are totally devoid of support in the record or that they are so glaringly erroneous as to constitute grave abuse of discretion, the SC must discard such erroneous findings of facts. SC finds that the exception applies in the case at bench.

Simulation is defined as :the declaration of a fictitious will, deliberately made by agreement of the parties, in order to produce, for the purposes of deception, the appearances of a juridical act which does not exist or is different from that which was really executed. The requisites of simulation are:

1. an outward declaration of will different from the will of the parties;
2. the false appearance must have been intended by mutual agreement; and
3. the purpose is to deceive third persons. None of these were clearly shown to exist in the case at bar.

Contrary to the erroneous conclusions of the appellate court, a simulated contract cannot be inferred from the mere non-production of the checks. It was not the burden of the petitioners to prove so. It is significant to note that the deed of absolute sale is a notarized document duly acknowledged before a notary public. As such, it has in its favor the presumption of regularity and it carries the evidentiary weight conferred upon it with respect to its due execution. It is admissible in evidence without further proof of its authenticity and is entitled to full faith and credit upon its face.

ALLIED AGRI-BUSINESS DEVELOPMENT V. CA (REMEDIAL)

The petition must fail. The allegation that cherry Valley being an unlicensed foreign corporation lacked the legal capacity to institute the suit in the trial court for the recovery of money claims from petitioner cannot be sustained. In fact, petitioner is estopped from challenging or questioning the personality of a corporation after having acknowledged the same by entering into a contract with it. The doctrine of lack of capacity to sue or failure of a foreign corporation to acquire a local license was never intended to favor domestic corporations who enter into solitary transactions with unwary foreign firms and then repudiate their obligations simply because the latter are not licensed to do business in this country.

Petitioner cannot also successfully argue that its failure to answer the request for admission did not result in its admission of the matters stated in the request. Section 1 of Rule 26 of the Rules of Court provides:

Section 1. REQUEST FOR ADMISSION - at any time after issues have been joined, a party may file and serve upon any other party a written request for the admission by the latter of the genuineness of any material and relevant document described in and exhibited with the request or of the truth of any material and relevant matter of fact set forth in the request. Copies of the documents shall be delivered with the request unless copies have already been furnished.

The purpose of the rule governing requests for admission of facts and genuineness of documents is to expedite trial and to relieve parties of the costs of proving facts whichi will not be disputed on trial and the truth of which can be ascertained by reasonable inquiry.

The burden of affirmative action is on the party upon whom notice is served to avoid the admission rather than upon the party seeking the admission. Hence, when petitioner failed to reply to a request to admit, it may not argue that the adverse party has the burden of proving the facts sought to be admitted. Petitioner's silence is an admission of the facts stated in the request.

SC finds that the motion for summary judgment filed by respondent cherry Valley on the ground that there were mo questions of fact in issue since the material allegations of the complaint were not disputed was correctly granted by the trial court. It is a settled rule that SUMMARY JUDGMENT may be granted if the facts which stand admitted by reason of a party's failure to deny statements contained in a request for admission show that no material issue of fact exists. By its failure to answer the other party's request for admission, petitioner had admitted all the material facts necessary for judgment against itself.

PEOPLE V. WEBB (REMEDIAL)

Rule 113. Section 6. POWER OF THE COURT TO STOP FURTHER EVIDENCE - The court may stop the introduction of further testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive.

The trial court was but exercising its judgment on what it perceived to be a superfluous exercise on the belief that the introduction thereof will not reasonably add to the persuasiveness of the evidence already on record.

Needless to state, the trial court cannot be faulted with lack of caution in denying respondent's motion considering that under the prevailing facts of the case, respondent had more than ample opportunity to adduce evidence in his defence. Certainly, a party cannot feign denial of due proceed where he had the opportunity to present his side. It must be borne in mind in this regard that due process is not a monopoly of the defense. Indeed, the State is entitled to due process as much as the accused. Furthermore, while a litigation is not a game of technicalities, it is a truism that every case must be prosecuted in accordance with the prescribed procedure to insure an orderly and speedy administration of justice.

It is pointed out that the defense has already presented at least 57 witnesses and 464 documentary exhibits, many of them of the exact nature as those to be produced or testified to by the proposed foreign deponents. Under the circumstances, the SC sustains the proposition that the trial judge commits no grave abuse of discretion if she decides that the evidence on the matter sought to be proved in the US could not possibly add anything substantial to the defense evidence involved.

MANOTOC V. CA (REMEDIAL)

Jurisdiction over the defendant is acquired wither upon a valid service of summons or the defendant's voluntary appearance in court. When the defendant does not voluntarily submit to the court's jurisdiction or when there is no valid service of summons, any judgment of the court which has no jurisdiction over the person of the defendant is null and void.

In an action strictly in personam, personal service on the defendant is the preferred mode of service, that is, by handling a copy of the summons to the defendant in person. If defendant, for excusable reasons, cannot be served with the summons within a reasonable period, then substituted service can be resorted to. While substituted service of summons is permitted, it is extraordinary in character and in derogation of the usual method of service. Hence, it must be faithfully and strictly comply with the prescribed requirements and circumstanced authorized by the rules. Indeed, compliance with the rules regarding the service of summons is as much important as the issue of due process as of jurisdiction.

Requirements for Substituted Service

Section 8, Rule 14 of the Rules of Court which applies to this case provides:
If the defendant cannot be served within a reasonable time as provided in the preceding section [personal service on defendant], service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein; or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof.

A meticulous scrutiny of the Sheriff's return readily reveals ABSENCE OF MATERIAL DATA ON THE SERIOUS EFFORTS TO SERVE THE SUMMONS ON MANOTOC IN PERSON. It cannot be determined how many times, on what specific dates, and at what hours of the day the attempts were made.

Further, it has not been shown that Sheriff exerted extraordinary efforts to locate Manotoc. Before resorting to substituted service, a plaintiff must demonstrate an effort in good faith to locate defendant through mode direct means.

To protect Manotoc's right to due process by being accorded proper notice as to the case against her, the substituted service of summons must be shown to have clearly complied with the rules.

Due to non-compliance with the prerequisites for valid service, the proceedings held before the trial court perforce, must be annulled.

The court a quo heavily relied on the presumption of regularity in the performance of official duty. Such presumption of regularity in the performance of official functions by the sheriff is not applicable in this case where it is patent that the sheriff’s return is defective.

GUIGUINTO CREDIT COOP V. TORRES (REMEDIAL)

Summons is a writ by which the defendant is notified of the action brought against him. Service of such writ is the means by which the court acquires jurisdiction over his person. Jurisdiction over the person of the defendant is acquired through coercive process, generally by the service of summons issued by the court, or through the defendant's voluntary appearance or submission to the court.

Where the defendant is a natural person, service may be personal, substituted, by publication, and such other mode of service as the court may deem sufficient.

In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. Jurisdiction over the person of a resident defendant who does not voluntarily appear in court can be acquired by personal service of summons under Section 7, Rule 14.

If he cannot be personally served with summons within a reasonable time, substituted service may be made in accordance with Section 8. If he is temporarily out of the country, any of the following modes of service may be resorted to:

1. substituted service set forth in Section 8;
2. personal service outside the country, with leave of court;
3. service by publication, also with leave of court; or
4. other manner the court may deem sufficient.

In these types of civil actions, summons on the defendant must be served by handing a copy thereof to the defendant in person, or in case of refusal, by tendering it to him. If efforts to find defendant personally makes prompt service impossible, service may be effected by leaving copies of the summons at defendant's house with some person of suitable age and discretion residing therein, or by leaving the copies at the defendant's office or regular place of business with some competent person in charge thereof.

In the instant case, the CA correctly rules that since substituted service was availed of in lieu of personal service, there should be a report stating that Pagtalunan was one with whom respondents had a relationship of trust and confidence that would ensure that the latter will receive or be notified of the summons issued in their names.

This is because substituted service may only be availed of when the respondents could not be served personally within a reasonable period of time, and such impossibility of prompt service must be shown by stating that earnest efforts have been made to find the respondents personally and that such efforts have failed.

It appears that the process server hastily and capriciously resorted to substituted service of summons without ascertaining the whereabouts of the respondents.

No earnest efforts were made to locate respondent Aid Torres who was allegedly working abroad at the time summons was served on her person. No explanation why substituted service was resorted to through Pagtalunan was stated in the Return.

A general statement that such efforts were made will not suffice for purposes of complying with the rules of substituted service of summons.

Well-settled is the rule that summons must be served upon the defendant himself. It is only when the defendant cannot be served personally within a reasonable time that substituted service may be resorted to ans such impossibility of prompt service should be shown by stating that efforts have been made to find the defendant personally and that such efforts have failed.

DASMARINAS GARMENTS V. REYES (REMEDIAL)

Where the deposition is to be taken in a foreign country where the Philippines has no "secretary or embassy or legation, consul general, consul, vice-consul, or consular agent," then obviously it may be taken only "before such a person or officer as may be appointed by commission or under letters rogatory.

In the case at bar, the RTC has issued a commission to the Asian Exchange Center thru Director Roces. It also appears that the commission is to be coursed through the DFA to course all requests for the taking of deposition of witnesses residing abroad to enable it and the Phil Foreign Service establishments to act on the matter in a judicious and expeditious manner to avoid delay in the deposition-taking.

That the deposition-taking will take place in a foreign jurisdiction not recognized by the Philippines in view of the one-China Policy is inconsequential. what matters is that the deposition is taken before a Philippine official acting by authority of the Phil DFA and in virtue of a commission duly issued by the Phil Court, in accordance with the Phil Rules of Court, pursuant to which opportunity for cross-examination of the deponent will be fully accorded to the adverse party.

Depositions may be used, without the deponent being actually called to the witness stand by the proponent, under certain conditions and for certain limited purposes. These exceptional situations are governed by Section 4, Rule 24 of the Rules of Court.

(c) xxx or (2) that the witness is out of the province and at a greater distance than 50 kms from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition xxx.

INTER-COUNTRY ADOPTION LAW

SECTION 26. APPLICABILITY - The following sections apply to inter-country adoption of Filipino children by foreign nationals and Filipino citizens permanently residing abroad.

SECTION 27. OBJECTIVES - The State shall:

(a) consider inter-country adoption as an alternative means of child care, if the child cannot be placed in a foster or an adoptive family or cannot, in any suitable manner, be cared for in the Philippines;

(b) ensure that the child subject of inter-country adoption enjoys the same protection accorded to children in domestic adoption; and

(c) take all measures to ensure that he placement arising therefrom does not result in improper financial gain for those involved.

SECTION 28. WHERE TO FILE PETITION - A verified petition to adopt a Filipino child may be filed by a foreign national or Filipino citizen permanently residing abroad with the Family Court having jurisdiction over the place where the child resides or may be found.

It may be filed directly with the Inter-Country Adoption Board.

SECTION 29. WHO MAY BE ADOPTED - Only a child legally available for domestic adoption may be the subject of inter-country adoption.

SECTION 30. CONTENTS OF PETITION - The petitioner must allege:

(a) his age and the age of the child to be adopted, showing that he is at least 27 years of age and at lest 16 years older than the child to be adopted at the time of application, unless the petitioner is the parent by nature of the child to be adopted or the spouse of such parent, in which case the age difference does not apply;

(b) if married, the name of the spouse who must be joined as co-petitioner except when the adoptee is a legitimate child of his spouse;

(c) that he has capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counseling from an accredited counselor in his country;

(d) that he has not been convicted of a crime involving moral turpitude;

(e) that he is eligible to adopt under his national law;

(f) that he can provide the proper care and support and instill the necessary moral values and example to all his children, including the child to be adopted;

(g) that he agrees to uphold the basic rights of the child...;

(h) that he comes from a country with which the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that the adoption of a Filipino child is allowed under his national laws; and

(i) that he possesses all the qualifications and none of the disqualifications provided in this Rule, in RA 8043, and in all other applicable Philippine laws.

SECTION 33. EFFECTIVITY - 22 August 2002.

DOMESTIC ADOPTION LAW

SECTION 1. APPLICABILITY OF THE RULE - This Rule covers the domestic adoption of Filipino children.

SECTION 2. OBJECTIVES -

(a) The best interest of the child shall be the paramount consideration in all matters relating to his care, custody, and adoption, in accordance with Philippine laws, the UN Convention on the Rights of the Child, UN Declaration on Social and Legal Principles relation to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption, Nationally and Internationally, and The Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption.

(b) The State shall provide alternative protection and assistance through foster care or adoption for every child who is a foundling, neglected, orphaned, or abandoned. To this end, the State shall:

1. ensure that every child remains under the care and custody of his parents and is provided with love, care, understanding, and security for the full and harmonious development of his personality. Only when such efforts prove insufficient and no appropriate placement or adoption within the child's extended family is available shall adoption by an unrelated person be considered.
2. safeguard the biological parents from making hasty decisions in relinquishing their parental authority over the child;
3. prevent the child from unnecessary separation from his biological parents;
4. conduct public information and educational campaigns to promote a positive environment for adoption;
5. ensure that government and private sector agencies have the capacity to handle adoption inquiries, process domestic adoption applications and offer adoption-related services including but not limited to parent preparation and post-adoption education and counseling;
6. encourage domestic adoption so as to preserve the child's identity and culture in his native land, and only when this is not available shall inter-country adoption be considered as a last resort; and
7. protect adoptive parents from attempts to disturb their parental authority and custody over their adopted child.

Any voluntary or involuntary termination of parental authority shall be administratively or judicially declared so as to establish the status of the child as "legally available for adoption" and his custody transferred to the DSWD or to any duly licensed and accredited child-placing or child-caring agency, which entity shall be authorized to take steps for the permanent placement of the child.

SECTION 3. DEFINITION OF TERMS -

(a) "Child" is a person below 18 at the time of filing of the petition for adoption.

(b) "A child legally available for adoption" refers to a child who has been voluntarily or involuntarily committed to the Department or to any accredited child-placing or child-caring agency, freed of the parental authority of his biological parents, or in case of rescission of adoption, his guarding, or adopter(s).

(c) "Voluntarily committed child" is one whose parents knowingly and willingly relinquish parental authority over him in favor of the Department.

(d) "Involuntarily committed child" is one whose parents, known or unknown, have been permanently and judicially deprived of parental authority over him due to abandonment, substantial, continuous or repeated neglect and abuse, or incompetence to discharge parental responsibilities.

(e) "Foundling" refers to a deserted or abandoned infant or child whose parents, guardian, or relatives are unknown, or a child committed to an orphanage or charitable or similar institution with unknown facts of birth and parentage and registered in the Civil Register as a "foundling."

(f) "Abandoned child" refers to one who has no proper parental care or guardianship or whose parents have deserted him for a period of at least 6 continuous months and has been judicially declared as such.

(g) "Dependent child" refers to one who is without a parent, guardian, or custodian or one whose parents, guardian, or other custodian for good cause desires to be relieved of his care and custody and is dependent upon the public for support.

(h) "Neglected child" is one whose basic needs have been deliberately not attended to or inadequately attended to, physically or emotionally, by his parents or guardian.

(s) "Simulation of birth" is the tampering of then civil registry to make it appear in the birth records that a certain child was born to a person who is not his biological mother, thus, causing such child to lose his true identity and status.

(u) "Pre-Adoption Services" refer to the psycho-social services provided by professionally-trained social workers of the Department, the social service units of local governments, private and governmental health facilities, Family Courts, licensed and accredited child-caring and child-placement agencies and other individuals or entities involved in adoption as authorized by the Department.

(v) "Residence" means a person's actual stay in the Philippines for 3 continuous years immediately prior to the filing of a petition for adoption and which is maintained until the adoption decree is entered. Temporary absences for professional, business, health, or emergency reasons not exceeding 60 days in 1 year does not break the continuity requirement.

(w) "Alien" refers to any person, not a Filipino citizen, who enters and remains in the Philippines and is in possession of a valid passport or travel documents and visa.

SECTION 4. WHO MAY ADOPT -

(1) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude, who is emotionally and psychologically capable of caring for children, at least 16 years older than the adoptee, and who is in a position to support and care for his children in keeping with the means of the family. The requirement of a 16-year difference between the age of the adopter and the adoptee may be waived when the adopter is the biological parent of the adoptee or is the spouse of the adoptee's parent.

(2) Any alien possessing the same qualifications as above-stated for Filipino nationals: Provided, that his country has diplomatic relations with the Republic of the Philippines, that he has been living in the Philippines for at least 3 continuous years prior to the filing of the petition for adoption and maintains such residence until the adoption decree is entered, that he had been certified by hsi diplomatic or consular office or any appropriate governmental agency to have the legal capacity to adopt in his country, and that his government allows the adoptee to enter his country as his adopted child. Provided further, that the requirements on residency and certification of the alien's qualification to adopt in his country may be waived for the following:

• a former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity;
• one who seeks to adopt the legitimate child of his Filipino spouse; or
• one who is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the 4th degree of consanguinity or affinity of the Filipino spouse.

(3) The guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities.

Husband and wife shall jointly adopt, except in the following cases:

• if one spouse seeks to adopt the legitimate child of one spouse by the other spouse;
• if one spouse seeks to adopt his own illegitimate child: provided however, that the other spouse has signified his consent thereto; or
• if the spouses are legally separated from each other.

SECTION 5. WHO MAY BE ADOPTED -

(1) Any person below 18 who has been voluntarily committed to the Department under Arts 154, 155, and 156 of PD 603 or judicially declared available for adoption;

(2) The legitimate child of one spouse, by the other spouse;

(3) An illegitimate child, by a qualified adopter to raise the status of the former to that of legitimacy;

(4) A person of legal age, regardless of civil status, if prior to the adoption, said person has been consistently considered and treated by the adopters as their own child since minority;

(5) A child whose adoption has been previously rescinded;

(6) A child whose biological or adoptive parents have died: provided that no proceedings shall be initiated within 6 months from the time of death of said parents;

(7) A child not otherwise disqualified by law or these rules.

SECTION 6. VENUE - The petition for adoption shall be filed with the Family Court of the province or city where the prospective adoptive parents reside.

SECTION 7. CONTENTS OF THE PETITION - The petition shall be verified and specifically state at the heading of the initiatory pleading whether the petition contains an application for change of name, rectification of simulated birth, voluntary or involuntary commitment of children, or declaration of child as abandoned dependent, or neglected.

(1) If the adopter is a Filipino citizen, the petition shall allege the following:

(a) the jurisdictional facts;

(b) that the petitioner is of legal age, in possession of full civil capacity and legal rights; is of good moral character; has not been convicted of any crime involving moral turpitude; is emotionally and psychologically capable of caring for children; is at least 16 years older than the adoptee, unless the adopter is the biological parent of the adoptee or is the spouse of the adoptee's parent; and is in a position to support and care for his children in keeping with the means of the family hand has undergone pre-adoption services as required by Section 4 of RA 8552.

(2) If the adopter is an alien, the petition shall allege the following:

(a) the jurisdictional facts;

(b) subparagraph 1(b) above;

(c) that his country has diplomatic relations with the Republic of the Philippines;

(d) that he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country and his government allows the adoptee to enter his country as his adopted child and reside there permanently as an adopted child; and

(e) that he has been living in the Philippines for a t least 3 continuous years prior to the filing of the petition and he maintains such residence until the adoption decree is entered.

The requirements of certification of the alien's qualification to adopt in his country and residency may be waived if the alien:

(i) is a former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity;

(ii) seeks to adopt the legitimate child of his Filipino spouse; or

(iii) is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the 4th degree of consanguinity or affinity of the Filipino spouse.

(3) If the adopter is the legal guardian of the adoptee, the petition shall allege that guardianship had been terminated and the guardian had cleared his financial accountabilities.

(4) If the adopter is married, the spouse shall be a co-petitioner for the joint adoption except if:

(a) one spouse seeks to adopt the legitimate child of the other;

(b) one spouse seeks to adopt his own illegitimate child and the other spouse signified written consent thereto; or

(c) the spouses are legally separated from each other.

(5) If the adoptee is a foundling, the petition shall allege the entries which should appear in his birth certificate, such as name of child, date of birth, place of birth, if known, sex, name, and citizenship of adoptive mother and father, and the date and place of their marriage.

(6) If the petition prays for a change of name, it shall also state the cause or reason for the change of name.

In all petitions, it shall be alleged:

(a) the first name, surname or names, age and residence of the adoptee as shown by his record of birth, baptismal, or foundling certificate and school records;

(b) that the adoptee is not disqualified by law to be adopted;

(c) the probable value and character of the estate of the adoptee;

(d) the first name, surname, or names by which the adoptee is to be known and registered in the civil registry.

A certification of non-forum shopping shall be included pursuant to Section 5, Rule 7 of the rules of Civil Procedure.

SECTION 19. RESCISSION OF ADOPTION OF THE ADOPTEE - The petition shall be verified and filed by the adoptee who is over 18, or with the assistance of the Department, if he is a minor, or if he is over 18 but is incapacitated, by his guardian or counsel.

The adoption may be rescinded based on any of the following grounds committed by the adopter:

(1) repeated physical and verbal maltreatment by the adopter despite having undergone counselling;

(2) attempt on the life of the adoptee;

(3) sexual assault or violence; or

(4) abandonment or failure to comply with parental obligations.

Adoption being in the best interests of the child, shall not be subject to rescission by the adopter. However, the adopter may disinherit the adoptee for causes provided in Article 919 of the Civil Code.

SECTION 20. VENUE - the petition shall be filed with the Family Court of the city or province where the adoptee resides.

SECTION 21. TIME WITHIN WHICH TO FILE PETITION - The adoptee, if incapacitated, must file the petition for rescission or revocation of adoption within 5 years after he reaches the age of majority, or if he was incapacitated, at the time of adoption, within 5 years after recovery from such incapacity.

SECTION 23. JUDGMENT - If the court finds that the allegations of the petition are true, it shall render judgment ordering the rescission of adoption, with or without costs, as justice requires.

The court shall order that the parental authority of the biological parent of the adoptee, if known, or the legal custody of the Department shall be restored if the adoptee is still a minor or incapacitated and declare that the reciprocal rights and obligations of the adopter and the adoptee to each other shall be extinguished.

The court shall further declare that the successional rights shall revert back to its status prior to adoption, as of the date of judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be respected.

It shall also order the adoptee to use the name stated in his original birth or foundling certificate.

the court shall further order the civil register where the adoption decree was registered to cancel the new birth certificate of the adoptee and reinstate his original birth or foundling certificate.