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A M I S T A D: We live to serve!!! (A 99)Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza

With the special participation of the Obiter MasterElla And the former slave-master turned into slave! --FRITZIE

RULE 104

VOLUNTARY DISSOLUTION OF

CORPORATIONS

( The Dissolution of Corporations shouldnow be filed with the SEC, and is covered bySecs. 117 to 122 of the Corporation Code ofthe Philippines (BP 68) which took effect onMay 1, 1980.

Dissolution - when the corporation ceasesto be a juridical person.

117. Methods of Dissolution. Acorporation formed or organized under theprovisions of this Code may be dissolvedvoluntarily or involuntarily.

NOTES:

Q: How many ways are there to dissolve acorporation?A: Two ways--voluntary & involuntary.

Q: How many ways of dissolvingvoluntarily?A: Three:

Voluntary dissolution where no creditorsare affected (Sec. 118)

Voluntary dissolution where creditors areaffected (Sec. 119)

Dissolution by shortening corporateterm(Sec. 120)

118. Voluntary dissolution where nocreditors are affected.

In case dissolution of a corporation doesNOT prejudice the rights of any creditor having aclaim against such corporation, then suchdissolution may be effected

by majority vote of the BOD or trustees,and

by a resolution duly adopted by the

affirmative vote of the stockholdersowning at least 2/3 of the outstandingcapital stock or of at least 2/3 of themembers

at a meeting to be held upon call of the dirs. ortrustees

after publication of the notice

of the time, place and object of themeeting

for 3 consecutive weeks

in a newspaper published in the placewhere the principal office of said

corporation is located; and if nonewspaper is published in such place,then in a newspaper of Generalcirculation in the Philippines, (aftersending such notice to each stockholderor member either by registered mail orpersonal delivery at least 30 days priorto said meeting.

A copy of the resolution authorizing thedissolution shall be

certified by a majority of the BOD ortrustees

and counter-signed by the secretary ofthe corporation.

The SEC shall thereupon issue the certificateof dissolution.

NOTES:

Q: How do directors and stockholders vote?

A: Both issue their respective resolutionsduly adopted by affirmative votes of therequired no. (BOD-majority; SH-2/3 OCS)

Q: Publication for 3 consecutive weeks?A: Actually, once a week for threeconsecutive weeks. This is the commonreqt in procedure. (Maybe an oversight oralready considered understood.)

Q: What is the Presidents role here?A: The President signs the Resolution.

119. Voluntary dissolution wherecreditors are affected.

Where the dissolution of a corporationmay prejudice the rights of any creditor, apetition for dissolution shall be filed with theSEC.

The petition shall be

signed by a majority of its BOD or trustees orother officers having the management of itsaffairs,

verified by its president or secretary or oneof its directors, or trustees, and

shall set forth

all claims and demands against it, and that its dissolution was resolved upon

the affirmative vote of the stockholdersrepresenting

at least 2/3 of the outstandingcapital stock or by

at least 2/3 of the members, at ameeting of its stockholders ormembers called for that purpose.

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If the petition is sufficient in form andsubstance, the Commission shall, by an ORDERreciting the purpose of the petition,

fix a date on or before which objectionsthereto may be filed by any person,

which date shall not be less than 30 days normore than 60 days after the entry of theorder.Before such date, a copy of the order shall

be published

at least once a week for 3 consecutiveweeks

in a newspaper of General circulation( published in the municipality or city

where the principal office of thecorporation is situated, or if there be nosuch newspaper, then in a newspaper ofGeneral circulation in the Phils.,

and a similar copy shall be posted

for 3 consecutive weeks

in 3 public places

in such municipality or city.

Upon 5 days notice, Given AFTER thedate on which the right to file objections as fixedin the order has expired, the Commission shallproceed to

hear the petition and

try any issue made by the objectionsfiled;and IF

no such objection is sufficient, AND

the material allegations of the petitionare true,it (Commission) shall

render judgment dissolving the

corporation and directing such disposition of its

assets as justice requires, and

may appoint a receiver to collectsuch assets and pay the debts of thecorporation.

NOTES:

Just note that the date fixed is a deadline,on or before which objections to the petitionmay be filed.

120. Dissolution by shortening ofcorporate term. A voluntary dissolution

may be effected by amending the AOI to shortenthe corporate term pursuant to the provisions ofthis Code.

A copy of the amended AOI shall besubmitted to the SEC in accordance with thisCode.

Upon approval of the amended AOI or

the expiration of the shortened term, asthe case may be,

the corporation shall be deemeddissolved without any further

proceedings, subject to the provisions ofthis Code on liquidation.

NOTES:

Q: When is the corporation deemed

dissolved?A: Two instances:1. Upon approval of the Amended AOI,

OR2. the expiration of the shortened term

Actually, the ff. are the rules: If expiration date is before approval by

SEC corpo dissolves upon approval If expiration date is after approval by

SEC corpo dissolves on the date ofexpiration of term

If the SEC does not act on petition within

6 mos. from the date of filing (Sec. 16,Corpo Code) corpo dissolves either on the day after the 6-mo. pd.

(if date of expiration was withinthe 6-mo. pd.)

or on the date of expiration ofterm (if date is after the 6-mo.pd.).

e.g.:Date filed petition: Jan. 1, 1998Expiration of Shortened Term: May 1,1998

6 mos. ends on: July 1, 19981) If approved by SEC on April 1

Dissolution on May 1 (exp. Ofshortened term)2) If approved on May 15

Dissolution on May 15 (date ofapproval)3) Not acted upon within 6 mos.

Dissolution on July 2 (day after the 6mo. pd)

( Note that failure of the SEC to act on thepetition within 6 months, as contemplated

by above rules, must not be due to the faultof corporation.

122. Corporate Liquidation.

Every corporation whose charter expires byits own limitation or is annulled by forfeiture orotherwise, or whose corporate existence forother purposes is terminated in any othermanner, shall nevertheless be continued as a

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body corporate for 3 years after the time when itwould have been so dissolved,

for the purpose of

prosecuting and defending suits by oragainst it

enabling it to settle and close its affairs,

to dispose of and convey its property

and to distribute its assets,

BUT NOT for the purpose of continuingthe business for which it was established.

At any time during said 3 years, saidcorporation is authorized and empowered toconvey all of its property to trustees for thebenefit of

stockholders,

members,

creditors, and

other persons in interest.From and after any such conveyance by

the corporation of its property in trust for thebenefit of its stockholders, members, creditors,

and others in interest, all interest which the corporation had in

the property terminates,

the legal interest vests in the trustees,and

the beneficial interest in thestockholders, members, creditors, andother persons in interest.

Upon the WINDING UP of the corporateaffairs, any asset distributable to any creditor orstockholder or member who is unknown orcannot be found shall be escheated to the city ormunicipality where such assets are located.

Except by decrease of capital stock andas otherwise allowed by this Code, nocorporation shall distribute any of its assets orproperty except

upon lawful dissolution and

after payment of all its debts andliabilities.

NOTES:

Q: For what purpose is the continuation asa body corporate?A: For purpose of winding up.

121. Involuntary dissolution. Acorporation may be dissolved by the SEC uponfiling of a verified complaint and after propernotice and hearing on Grounds provided byexisting laws, rules and regulations.

RULE 105

JUDICIAL APPROVAL

OF VOLUNTARY RECOGNITION

OF MINOR NATURAL CHILDREN

Sec. 1. Venue.-- Where judicialapproval of a voluntary recognition of aminor natural child is required, such childor his parents shall obtain the same by

filing a petition to that effect with the RTCin which the child resides.

1. MEANING OF VOLUNTARYRECOGNITION

VOLUNTARY RECOGNITION is an admissionof the fact of paternity or maternity by thepresumed parent, expressed in the formprescribed by the NCC.

Its essence lies in the avowal of the parentthat the child is his; the formality is addedto make the admission incontestable, inview of its consequences.

The FORM is prescribed by Art. 278 of theNCC:

RECOGNITION shall be made in the

record of birth

a will

a statement before a court ofrecord

or in any authentic writing.

Judicial approval is needful if the recognition

of the minor is effected, not through arecord of birth or in a will but thorough astatement in a court of record or anauthentic document. In any case, theindividual recognized can impugn therecognition within 4 years following theattainment of majority.

Art. 281 (2) of the NCC provides:When the recognition of a minor DOES

NOT take place

in a RECORD of BIRTH or

in a WILL,

Judicial Approval is Necessary.

The action must be brought within the sameperiod specified in Art. 173, FC, exceptwhen the action is based on the secondparagraph of Art. 172, in which case theaction may be brought during the lifetime ofthe alleged parent.

Art. 173, FC. The action to claim legitimacy may be

brought by the child during his or her lifetime and

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shall be transmitted to the heirs should thechild

die during minority or

in a state of insanity.In these cases, the heirs shall

have a period of 5 years within which to

institute the action. The action alreadycommenced by the child shall survivenotwithstanding the death of either or bothof the parties.

Art. 172. The filiation of legitimate (orillegitimate) children is established by anyof the following:

(1) The Record of Birth appearing inthe Civil register or a final judgment; or

(2) An admission of legitimatefiliation in a public document or a private

handwritten instrument and signed by theparent concerned.

In the absence of the foregoingevidence, the legitimate filiation shall beproved by:

(1) The Open and Continuouspossession of the status of a legitimatechild, or

(2) Any other means allowed by theRules of Court and special laws.

2. HOW VOLUNTARY RECOGNITIONIS EXPRESSED

AUTHENTIC WRITING means any Genuineand indubitable writing sufficient forcompulsory recognition.

The status of a person as a voluntaryacknowledged natural child could beestablished by the ordinary means ofevidence without any limitations as totime. (Larena vs. Hubio) [See lecturenotes below.]

NOTES:

Q: When can the child file action?A: See Art. 173 above which provides whena child may bring an action; moreover, thefollowing NCC provision which, althoughalready repealed by the Family Code, maystill be applicable for lack of substituteprovisions on the matter.

Art 285, NCC. The ACTION for therecognition of natural children may be

brought ONLY during the lifetime of the presumed

parents,

EXCEPT:

(1) If the Father/Mother DIED DURING the

MINORITY of the CHILD, in w/ccase the latter may FILE ACTION BEFORE theexpiration of 4 YRS. from the

attainment of his majority age.(2) If AFTER the DEATH of theFather/Mother a DOCUMENT shouldappear

of which NOTHING had been HEARDand

in w/c either/ both parents recognizethe child.

In this case, the ACTION must becommenced w/in 4 YRS. from the FINDINGof the document.

Pls. take note of the following NCCprovisions which, although already repealedby the FC, may still be applicable for lack ofsubstitute provisions on the matter.[Classmates, these are the provisions namedyo magulo WON still applicable. MaamA said that Art. 285 cited above is stillapplicable. Commentaries and a 1989 caseapply Arts. 278 and 281. Herrera cited Art.283 (1), but mentioned Art. 449 of RPC, notNCC. So ano ba talaga kuya? Maam A said

these are confusing. Anyway, she took noteof said provisions, at palagay ko,kakalampagin nya ang Congress tungkoldito. By the way, she said the FC wasreally minadali, so I think that explainseverything. Ask na lang your Personsteacher.)

NCC--Recognition Of Natural Children

276. A NATURAL CHILD may be recognizedby the father and the mother

JOINTLY, orby ONLY ONE of them.

277. In case the recognition is made byONLY ONE of the parents, it shallbe PRESUMED that the child isNATURAL, IF the parent recognizing ithad LEGAL CAPACITY to contract

marriage at the time of conception.

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278. RECOGNITION shall be made in the

record of birth

a will

a statement before a court ofrecord

or in any authentic writing.

279. A minor who may not contractmarriage w/o parental consent (18-21)CANNOT acknowledge a naturalchild

UNLESS

parent/Guardian APPROVES theacknowledgment

recoGnition is made in a WILL

280. When the FATHER or the MOTHERmakes the recognition SEPARATELY,

HE/SHE shall NOT REVEAL the

name of the person with whomhe/she has the child;

neither shall he/she STATE anyCIRCUMSTANCE whereby theother parent may beidentified.

281. A child who is OF AGE CANNOT BERECOGNIZED without his CONSENT.

When the recognition of a minorDOES NOT take place

in a RECORD of BIRTH or

in a WILL,JUDICIAL APPROVAL IS NECESSARY.

A minor can in any case IMPUGN therecognition within 4 YRS. ff. the attainmentof his majority.

282. A RECOGNIZED natural child has theright:(1) To BEAR THE SURNAME of therecognizing parent(2) To receive SUPPORT from such parent(291)

(3) To receive in a proper case thehereditary portion w/c is determined by thiscode.

INVOLUNTARY RECOGNITION:

283. In any of the ff. cases,the FATHER is OBLIGED to recognize

the child as his natural child:(1) In cases of

RAPE/ABDUCTION/SEDUCTION, whenthe period of the offense coincides more

or less with that of conception;

(2) When the child is in CONTINUOUSPOSSESSION of the STATUS of a CHILD of

the alleged father by the DIRECT ACTS of the latter or

of his FAMILY

(3) When the child was CONCEIVED duringthe time when the mother COHABITEDwith the SUPPOSED father.

(4) When the child HAS in his favor ANYEVIDENCE or PROOF the defendantis his father.

284. The MOTHER is OBLIGED to recognizeher natural child:(1) In any of the cases in the precedingarticle, as between the child & the mother.

(2) When the BIRTH and the IDENTITY of thechild are CLEARLY PROVEN.

286.The recognition made in favor of achild who

does not possess all the conditionsin Art. 269, or

in w/c the requirements of the law

have not been fulfilledmay be IMPUGNED by thosewho are PREJUDICED by such

recognition.

Sec. 2. Contents of petition.-- Thepetition for judicial approval of a voluntaryrecognition of a minor natural child shallcontain the following allegations:

(a) The jurisdictional facts;(b) The names & residences of the

parents who acknowledged the child, oreither of them, and

their compulsory heirs, and the person or persons with whom the child

lives;(c) The fact that the recognition

made by the parent or parents took place

in a statement before a court of recordor

in an authentic writing,

copy of the statement or writing beingattached to the petition.

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Sec. 3. Order for Hearing.-- Uponthe filing of the petition, the court, by anorder reciting the purpose of the same,shall

fix the date and place for the hearingthereof, which date shall not be morethan 6 months after the entry of theorder, and shall, moreover,

cause a copy of the order to be

served personally or by mail upon theinterested parties, and

published once a week for 3consecutive weeks, in a newspaper ornewspapers of general circulation inthe province.

Sec. 4. Opposition.-- Anyinterested party must, within 15 days

from service, or

from the last date of publication of theorder referred to in the next precedingsection,file his opposition to the petition,

stating the grounds or reasons therefor.

Sec. 5. Judgment.-- If, from theevidence presented during the hearing,the court is satisfied that the recognitionof the minor natural child was

willingly and voluntarily made by theparent or parents concerned, and

is for the best interest of the child, it shall render judgment granting

judicial approval of such recognition.

INVOLUNTARY RECOGNITION of a naturalchild may be made:

(a) by an incontrovertible paper written bythe parent expressly recognizing hispaternity;

(b) by giving such child the status of a

natural child of the father, justified bythe direct act of the father or his family[Art. 283(2)];

(c) by criminal action for rape, seduction orabduction (par. 2, Art. 449, RPC)

Note: Maybe we can improve thisenumeration of Herrera by just applying Art.283, NCC quoted above. Maam A saidabove enumeration does not make sense.

NOTES: IMPT:

Q: What if the presumed parentsrecognized the minor natural child eithervoluntarily or involuntarily without judicial

approval and afterwards died, should thechild, after reaching majority age, ask for

judicial approval of such recognition?

( The book makes distinctions betweenvoluntary and involuntary recognition andtheir effects; but the same are irrelevant(aside from being confusing) because of theruling of the SC in Gapusan Chua vs. CA.)

A: NO. Requirement of judicial approval isfor the BENEFIT OF THE MINOR. Lack of said

JA cannot impede the effectivity of the

judgment made.

The judicial approval is for theprotection of the minor against anyacknowledgment made to his prejudice.

Therefore, the lack or insufficiency of suchapproval is NOT a defect available to therecognizing parent but one which the minormay raise or waive. If after reaching theage of majority the minor consents to theacknowledgment, the lack of judicialapproval should make no difference.

Sec. 6. Service of judgment uponcivil registrar.-- A copy of the judgmentrendered in accordance with thepreceding section shall be served uponthe civil registrar whose duty it shall be toenter the same in the register.

RULE 106

CONSTITUTION OF FAMILY HOME

Rule 106 is deemed repealed by theprovisions of the Family Code.

FAMILY CODE

ART 152. The family home, constitutedjointly by the husband and the wife or by anunmarried head of a family, is the dwellinghouse where they and their family reside, andthe land on which it is situated.

ART. 153. The family home is deemedconstituted on a house and lot from the time it

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is occupied as a family residence. From thetime of its constitution and so long as any ofthe beneficiaries actually resides therein, thefamily continues to be such and is exemptfrom execution, forced sale or attachmentexcept as hereinafter provided and to theextent of the value allowed by law.

There is no need to file verified petitionfor constitution of family home under FC.

ART. 154. The beneficiaries of a familyhome are:

The husband and the wife, or an unmarriedperson who is the head of a family; and

Their parents, ascendants, descendants,brothers and sisters, whether the relationshipbe legitimate or illegitimate, who are living inthe family home and who depend upon thehead of the family for legal support.

ART. 155. The family home shall beexempt from execution, forced sale or

attachment except:1) For nonpayment of taxes;2) For debts incurred prior to the constitution

of the family home;3) For debts secured by mortgages on the

premises before or after such constitution;and

4) For debts due to laborers, mechanics,architects, builders, materialmen andothers who have rendered service orfurnished material for the construction ofthe building.

Modequillo vs. Salinas

The debt or liability which was the basisof the judgment arose or was incurred atthe time of the vehicular accident on 16March 1976 and the money judgmentarising therefrom was rendered by theappellate court on 29 January 1988. Bothpreceded the effectivity of the FC on August4, 1988 (not August 3 1988 being a leapyear).

The contention that it should beconsidered a family home from the time itwas occupied by petitioner and his family in

1969 is not well-taken. Under Art. 162 ofthe FC, The provisionsshall governexisting family residences insofar as saidprovisions are applicable. It does notmean that ARTS. 152 and 153 haveretroactive effect such that all existingfamily residences are deemed to have beenconstituted as family homes at the time oftheir occupation prior to the effectivity ofthe FC and are exempt from execution forthe payment of obligations incurred before

the effectivity of the FC. Art. 162 simplymeans that all existing family residences atthe time of the effectivity of the FC areconsidered family homes and areprospectively entitled to the benefitsaccorded to a family home.

ART. 157. The actual value of the familyhome shall not exceed, at the time of itsconstitution, the amount of three hundredthousand pesos in urban areas, and two hundredthousand pesos in rural areas, or such amountsas may hereafter be fixed by law.

In any event, if the value of the currencychanges after the adoption of this Code, thevalue most favorable for the constitution of afamily home shall be the basis of evaluation.

For purposes of this Art., urban areas aredeemed to include chartered cities andmunicipalities whose annual income at leastequals that legally required for chartered cities.All others are deemed to be rural areas.

ART. 160. When a creditor whose claim isnot among those mentioned in Art. 155 obtains a judgment in his favor and he has reasonablegrounds to believe that the family home isactually worth more than the maximum amountfixed in Art. 157, he may apply to the courtwhich rendered the judgment for an orderdirecting the sale of the property underexecution. The court shall so order if it finds thatthe actual value of the family home exceeds themaximum amount fixed by law as of the time ofits constitution. If the increased actual valueexceeds the max. amount and results fromsubsequent voluntary improvements introducedby the person/s constituting the family home, by

the owner/s of the property, the same rule andprocedure shall apply.

At the execution sale, no bid below thevalue allowed for a family shall be considered. The proceeds shall be applied first to theamanita mentioned in 157 and to the liabilitiesunder the judgment and the costs. The excess,if any, shall be delivered to the judgmentcreditor.

RULE 107

ABSENTEES

Sec. 1. Appointment ofrepresentative. When a persondisappears from his domicile, hiswhereabouts being unknown, and withouthaving left an agent to administer hisproperty, or the power conferred upon theagent has expired, any interested party,relative or friend, may petition the RTC ofthe place where absentee resided beforehis disappearance, for the appointment ofa person to represent him provisionally in

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all that may be necessary. [In the City ofManila, the petition shall be filed in the

Juvenile and Domestic Relations Court.]

This rule is based on:

ART. 381 CC. When a person disappearsfrom his domicile, his whereabouts beingunknown, and without leaving an agent toadminister his property, the judge, at theinstance of an interest party, a relative, or afriend, may appoint a person to represent him inall that may be necessary.

This same rule shall be observed whenunder similar circumstances the power conferredby the absentee has expired.

ART. 382. The appointment referred to in381 having been made, the judge shall take thenecessary measures to safeguard the rights andinterests of the absentee and shall specify thepowers, obligations and remuneration of his

representative, regulating them, according to thecircumstances, by the rules concerningguardians.

Sec. 2 Declaration of absence;who may petition. After the lapse of 2years from his disappearance and withoutany news about the absentee or since thereceipts of the last news, or 5 years incase the absentee has left a person incharge of the administration of hisproperty, the declaration of his absenceand the appointment of a trustee oradministrator may be applied for by anyof the ff:

(a) The spouse present;(b) The heirs instituted in a will, who may

present an authentic copy of thesame;

(c) The relatives who would succeed bythe law of intestacy; and

(d) Those who have over the property ofthe absentee some right subordinatedto the condition of his death.

This rule is based on the ff:

ART. 384 CC. Two years having elapsedwithout any news about the absentee or sincethe receipt of the last news, and five years incase the absentee has left a person in charge ofthe admin of his property, his absence may bedeclared.

ART. 385. The ff may ask for thedeclaration of absence:

1. The spouse present;2. The heirs instituted in a will, who may

present an authentic copy of the same;

3. The relatives who may succeed by law ofintestacy;

4. Those who may have over the property ofthe absentee some right subordinated to thecondition of his death.

It is not necessary that a declaration of

absence be made in a proceeding separatefrom and prior to a petition for admin.(Reyes vs. Alejandro)

The petition to declare the husband anabsentee and the petition to place the mgtof the conjugal properties in the hands ofthe wife could be combined and adjudicatedin the same proceeding. (Daya Maaria Tol-Noguera v. Villamor)

Sec. 3. Contents of petition. - Thepetition for the appointment of a

representative, or for the declaration ofabsence and the appt of a trustee or anadmin, must show the ff:

(a) The jurisdictional facts;(b) The names, ages and residences of

the heirs instituted in the will, a copyof which shall be presented, and of therelatives who would succeed by thelaw of intestacy;

(c) The names and residences of creditorsand others who may have any adverseinterest over the property of theabsentee;

(d) The probable value, location andcharacter of the property belonging tothe absentee.

Sec. 4. Time of hearing; noticeand publication thereof. When apetition for the appt of a representative,or for the declaration of absence and theappt of a trustee or admin is file, the courtshall fix a date and place for the hearingthereof where all concerned may appearto contest the petition.

Copies of the notice of the time and

place fixed for the hearing shall be servedupon the known heirs, legatees, devisees,creditors and other interested persons, atleast 10 days before the day of thehearing, and shall be published once aweek for 3 consecutive weeks prior to thetime designated for the hearing, in anewspaper of general circulation in theprovince or city where the absenteeresides, as the court shall deem best.

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Sec. 5. Opposition. Anyoneappearing to contest the petition shallstate in writing his grounds therefor, andserve a copy thereof on the petitioner andother interested parties on or before thedate designated for the hearing.

Sec. 6. Proof at hearing; order. -At the hearing, compliance with theprovisions of section 4 of the rule mustfirst be shown, upon satisfactory proof ofthe allegations in the petition, the courtshall issue an order granting the sameand appointing the prep, trustee or adminfor the absentee. The judge shall take thenecessary measures to safeguard therights and interests of the absentee andshall specify the powers, obli andremuneration of his rep, trustee or admin,regulating them by the rules concerningguardians.

In case of declaration of absence,the same shall not take effect until 6months after its publication in anewspaper of general circulationdesignated by the court AND in theOfficial Gazette.

Sec. 7. Who may be appointed. Inthe appointment of a rep, the spousepresent shall be preferred when there isno legal separation, if the absentee left nospouse, or if the spouse present is a minoror otherwise incompetent, any competent

person may be appointed by the court.

In case of declaration of absence,the trustee or admin of the absenteesproperty shall be appointed in accordancewith the preceding par.

This is based on Art. 383 of CC.Basically, it says the same thing. Dapatlang, kaya nga based doon. He! He!

Sec. 8. Termination of

administration. The trusteeship oradmin of the property of the absenteeshall cease upon order of the court in anyof the ff cases:

(a) When the absentee appearspersonally or by means of an agent;

(b) When the death of the absentee isproved and his testate or intestateheirs appear;

(c) When a third person appears, showingby a proper document that he hasacquired the absentees property bypurchase or other title.

In these cases the trustee or adminshall cease the performance of his office,

and the property shall be placed at thedisposal of those who may have a rightthereto.

This is based on Art. 389 of the CC.

Declaration of Absence is Unnecessary where there

are no properties

The need to have a person judiciallydeclared an absentee is when

he has properties which have to betaken care of or administered by a repappointed by the Court

his wife is asking the court that theadmin of all classes of property in themarriage be transferred to her

the spouse of the absentee is asking forseparation of property.

The petition to declare the husband anabsentee and the petition to place themanagement of the conjugal properties inthe hands of the wife may be combined andadjudicated in the same proceedings.

No independent action for Declaration of

Presumption of DeathThe disputable presumption established bythe rule of evidence that a person not heardfrom in seven years is dead may arise andbe invoked either in an action or in a specialproceeding, which is tried or heard by, andsubmitted for decision to, a competentcourt. Independently of such an axn orproc, the presumption of death cannot beinvoked nor can it be made the subject ofan action or spec proc. (In re NicolaiSzatrow)

Prof. Avena: This is a rebuttablepresumption established by the rules ofevidence so you dont have to go to courtand file an action or spec proc simply forthe purpose of securing itperse.

To illustrate: If you are a beneficiary of aninsurance policy and the insured has beenabsent for at least 7 years (plus no news ofhis whereabouts), you can file an action for

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the collection of the proceeds. In so doing,you have in your favor the disputablepresumption of the insureds death. Youneed not go (and besides you cannot dothis) to court to file an independent actionfor the declaration of the insureds death.

(Sana naintindihan niyo iyong pagkakaintindi ko sa sinabi ni Maam Fritz)

EXCEPTION: The need for declaration ofpresumptive death for purposes ofremarriage. This is based on Art. 41 of theFC. Otherwise, the subsequent marriageshall be null and void.

REQUISITES:

The prior spouse had been absent forfour consecutive years and

the spouse present had a well-foundedbelief that the absent spouse wasalready dead.

In case of disappearance where there isdanger of death under Art. 391 CC, anabsence of only two ears shall besufficient.

This provision is intended to protect thepresent spouse for a criminal prosecutionfor bigamy because with such judicialdeclaration, good faith of the presentspouse is established.

ABSENT SPOUSE This means that the other spouse

has been missing for at least four years, itbeing unknown whether or not he or she isstill alive, and the present spouse having awell-founded belief that the missing spouseis already dead.

The period of 4 years is reduced to 2under the ff circumstances (Art. 391 CC)

(a) The missing person was on board avessel lost during a sea voyage, or anaeroplane which is missing;

(b) The missing person was in the armedforces and had taken part in war; or

(c) The missing person was in danger ofdeath under other circumstances.

In the above case, the 2-yr period iscomputed from the occurrence of the eventfrom which death is presumed.

Vessel all kinds of watercraft

Aeroplane all kinds of aircraft

Taking part in war includes all militaryoperations or undertaking involvingarmed fighting and does not only applyto soldiers but also to those employed in

the armed forces like nurses anddoctors, reporters and cameramen.

In danger of death events asearthquakes, fires, explosions, etc.

Presumption of Death must yield topreponderance of evidence

There are certain circumstanceswhere a person was already considereddead without waiting for the period toexpire. (Eastern Shipping Lines v. Lucero)

***Caveat: Im typing this from memory

dahil nagkataong this was included in mypart sa evidence.

In this case, the ship where theperson presumed dead was on board sunkdue to storm. In fact, nakita pa nga nila samay coast iyong wrecked parts ng ship. Sosabi ng SC, no need to wait for theexpiration of the 4-yr period (this was notfor subsequent marriage) dahil bypreponderance of evidence, thecircumstances sufficiently show that theperson may be considered dead.

SUMMARY OF JUDICIAL PROCEEDINGS IN

THE FAMILY LAW

Art. 238. Until modified by the SC, theprocedural rules in this title shall apply in allcases provided for in this Code requiringsummary court proc. Such cases shall bedecided in an expedition manner without regardto technical rules.

Characteristics of Summary Proceedings inthe FC

(1) The pet shall be verified, to assure itstruthfulness.

(2) Notice of the filing of the pet be sent toresp at his last known address, as partof due process.

(3) No periods set; it is up to the judge todet the period within which the respshld answer the petition and the

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hearing thereof, which shld be veryshort, considering na summary nga.

(4) There is a preliminary conferencewherein lawyers are excluded.

(5) The appearance of the trial fiscal of thecourt is not required. (Baka absent orunprepared pa.)

(6) The prelim confab should be conductedpersonally by the judge in the nature ofan inquisitorial hearing. (Q & A)

(7) The proceedings can be decided on thebasis of affidavits or otherdocumentary evidence. Oraltestimonies will be required only whennecessary and at the discretion of thecourt.

(8) Case shall be decided in the mostexpeditious manner, without regard totechnical rules.

(9) Judgment shall be immediately finaland executory.

APPLICABILITY OF PROCEDURAL RULES

The rules of summary procedure shall applyto the ff:

(1) Art. 100 par (2) separation in factbetween H and W under the regime ofACP and where the consent of onespouse to any transaction of the otheris required by law.

(2) Art. 127 (2) same as Art. 100 butunder the regime of CPG.

(3) Art. 41 action for declaration of thepresumptive death of an absent spousebelieved to be dead.

(4) Art. 51 delivery of presumptivelegitimes by means of a mutualagreement requiring judl approval;

(5) Art.69 disagreement in the fixing offamily domicile;

(6) Art.73 objection by one spouse to theexercise by the other spouse of anylegit prof, occupation, bus or activity;

(7) Art. 96 disagreement in the jointadmin and enjoyment of thecommunity prop;

(8) Art. 124 disagreement in the joint

admin and enjoyment of ACP;

(9) Art. 217 entrusting of parentalauthority over foundlings, abandoned,neglected or abused children and otherchildren similarly situated to heads ofchildrens homes, orphanages andsimilar institutions duly accredited bythe govt;

(10) Art. 225 fixing of the bond of theparents.

SEPARATION IN FACT BETWEEN HUSBANDAND WIFE

Pls. See 239-253 of the FC

Unless Congress would decide to re-create the former Juvenile and DomesticRelations Courts or family courts which wereabolished by BP 129, all proc to be filedunder the FC would be cognizable by thebranches of the RTC designated by the SCto handle exclusively juvenile and domesticrelations cases, and in places where nodesignation is made, by the RTC of theproper venue of the case. Venue shall bethe place of residence of either spouse.

Claims for Damages not covered bySummary Procedure

Claims for damages cannot belitigated in the same proceedings bec. Suchclaims will necessarily entail delay.Independent or separate cases shalltherefore be necessary for establishing andenforcing claims for damages.

Due Process to Be Observed

Def. spouse shall be duly notifiedand furnished a copy of the pet at his lastknown address and shall be given theopportunity to answer the same or to showcause why the pet should not be granted.Otherwise, void for lack of DP.

Prelim Conference; No Lawyers

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Shall be conducted by the judgepersonally and not thru Clerk of Court or aCommissioner. Counsel shall not assist theparties at this stage.

Non-appearing party shall be compelled to

appear; Failure to appear despite efforts-Ex-parte proc authorized

The court shall require attendance ifpossible. If despite such efforts, the partystill does not appearex-parte proceedings.

The court shall render decision on the basisof affidavits, documentary evidence or oraltestimonies.

Judgment Immediately Final and Executory

Not appealable just like a decision basedon a compromise agreement. The decisioncan be questioned in the ff cases:(1) By a special civil action for certiorari on

grounds of grave abuse of discretion,excess of juris or lack of juriscommitted by the court;

(2) By annulment of decision based on lackof juris or extrinsic fraud.

RULE 108

CANCELLATION OR CORRECTION OF

ENTRIES IN THE CIVIL REGISTRY

Sec. 1 Who may file petition. Anyperson interested in any act, even, orderor decree concerning the civil status ofpersons which has been recorded in thecivil register, may file a verified petitionfor the cancellation or correction of anentry relating thereto, with the RTC of theprovince where the corresponding civilregistry is located.

Role of the Court

The crts role in hearing the petitionto correct certain entries in the civil registryis to ascertain the truth about the factsrecorded therein. Reason: Truth is bestascertained or approximated by trialconducted under the adversary system.

Proceedings for the correction oferroneous entry should not be consideredas establishing ones status in a legalmanner conclusively beyond dispute. Art.410 CC provides, ..the books making upthe civil register and all documents relating

theretoshall be prima facie evidence ofthe facts therein contained.

The correction shld not imply achange of status but a mere rectification oferror to make the matter corrected speakfor the truth. There is therefore no increaseor diminution of substantive right, as is thebasis for holding that R108 would beunconsti if held to allow correction of morethan mere harmless clerical errors.

Distinction bet. R103 and R108

R103 R108change of name only

all cancellation orcorrection of entries

the entry is correctbut you want tochange it

there is a mistakewhich you

want to correct

Civil Registrar not aparty

Civil Registrar is anIndispensable party.Otherwise, null andVoid. REASON:interested party in

Protecting integrityOf public documents

**If both reliefs are to be sought in thesame proceedings all the requirements ofR103 and 108 must be complied with.

Proceeding when error is clerical orsubstantive

Clerical the procedure is summary.

Substantive the procedure is

adversary.

Sec. 2 Entries subject tocancellation or correction. Upon goodand valid grounds, the ff. entries in thecivil register may be cancelled orcorrected:(a) births;(b) marriages;(c) deaths;(d) legal separation;

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(e) judgments of annulments of marriage;(f) judgments declaring marriages void

from the beginning;(g) legitimations;(h) adoptions;(i) acknowledgments of natural children;

(j) naturalization;(k) election, loss or recovery of citizenship;

(l) civil interdiction;(m)judicial determination of filiation;(n) voluntary emancipation of a minor;

and(o) changes of name.

R108 covers:1) Correction of innocuous or clerical errors

apparent on the facts of the record andcapable of being corrected by merereference to it, e.g., misspellings.

2) Correction of substantial errors providedproceedings is adversary, e.g.citizenship.

Appropriate Adversary ProceedingsOne having opposing parties;

contested, as distinguished from an exparte application, one which the partyseeking relief has given legal warning to theother party, and afforded the latter anopportunity to contest it.

Persons who must be made parties

1) Civil Registrar;2) All persons who have or claim any

interest which would be affectedthereby.

These are also the persons entitled to

oppose the petition.

Upon the filing of the petition, it becomesthe duty of the court to:1) issue an order fixing the time and place

for the hearing of the petition, and2) cause the order for hearing to be

published once a week for 3 consecutive

weeks in a newspaper of gen circulationin the province.

Sec. 3. Parties. When cancellation orcorrection of an entry in the civil register issought, the civil registrar and all personswho have or claim any interest which wouldbe affected thereby shall be made parties tothe proceeding.

Sec. 4. Notice and Publication.Upon the filing of the petition, the courtshall, by an order, fix the time and placefor the hearing of the same, and causereasonable notice thereof to be given tothe persons named in the petition. Thecourt shall also cause the order to be

published once a week for 3 consecutiveweeks in a newspapers of gen circulationin the province.

Sec. 5. Opposition. The civilregistrar and any person having orclaiming any interest under the entrywhose cancellation or correction is soughtmay, within 15 dys from notice of thepetition, or from the last date ofpublication of such notice, file hisopposition thereto.

ADVERSARY PROCEEDINGS

1) When the petition is filed either by thecivil registrar or any person having aclaimand the opposition is activelyprosecuted.

2) When all relevant facts have been fullyand properly developed, where opposingcounsel have been given opportunity todemolish the opposite partys case, andwhere the evidence has been thoroughlyweighed and considered.

3) When the opposition is filed either bythe civil registrar or any person havingor claiming any interest

Sec. 6. Expeditious proceedings. The court in which the proceeding isbrought may make orders expediting theproceedings, and may also grant preliminjunction for the preservation of therights of the parties pending such proc.

Sec. 7 Order. After hearing, thecourt may either dismiss the petition orissue an order granting the cancellation orcorrection prayed for. In either case, acertified copy of the judgment shall beserved upon the civil registrar concernedwho shall annotate the same in his record.

RULE 109

APPEALS IN SPECIAL PROCEEDINGS

Section 1. Orders or judgmentsfrom which appeals may be taken. Aninterested person may appeal in specialproceedings from an order or judgment

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rendered by a RTC or a Juvenile andDomestic Relations Court, where suchorder or judgment:(a) Allows or disallows a will;(b) Determines who are the lawful heirs of

a deceased person, or the distributiveshare of the estate to which such

person is entitled;(c) Allows or disallows, in whole or in part,

any claim against the estate of adecease person, or any claimpresented on behalf of the estate inoffset to a claim against it;

(d) Settles the account of an executor,admin, trustee or guardian;

(e) Constitutes, in proceedings relating tothe settlement of the estate of adecease person, or the admin of atrustee or guardian, a finaldetermination in the lower court of therights of the party appealing, except

that no appeal shall be allowed fromthe appointment of a special admin;and

(f) Is the final order or judgment renderedin the case, and affects the substantialrights of the person appealing,UNLESS it be an order granting ordenying a motion for a new trial or forrecon.

Prof. Avena:Sec. 1 (f). The unless clause here simplymeans that in these two instances, you goon appeal immediately.

Enumeration is not exclusive, e.g.,approval of bond, declaration ofincompetency for purposes ofguardianship.

Mode of AppealSpec Pro- The period of appeals is

30 days, a record on appeal being required.Exc: Habeas corpus cases 48

hours.

Appeals in Liquidation Proceedings against

Insolvent Corp is by Record on Appeal

Since liquidation proc against aninsolvent corp is a spec pro, the appeal isby record on appeal. REASON: severalclaims are actually separate ones and adecision or final order with respect to anyclaim can be appealed. Necessarily the origrec on appeal must remain in the TC whereother claims may still be pending.

Who May Appeal -- Interest Person

A stranger having neither materialnor direct interest in a testate or intestatehas no rt to appeal from any order issued

herein.

May appeal only when the order,decree, judgment constitutes a finaldetermination of the rights of the appellantsand the appeal shall affect every order,decree or judgment appealed from, and notmerely the interest which the appellantsmay have therein.

*Prof. Avena: May sometimes beinterlocutory in nature if we were toconsider it under civpro but it is final in thesense that it disposes of rights and obli ofparties, e.g. declaration of incompetency

You can appeal na although if viewed undercivpro, hindi pa ito final dahil wala pang na-aapoint na guardian. In other words, hindipa tapos iyong guardianship proc.(Siyempre, hindi ganito iyung pagkakasabi-Fritz)

The fact that the admin did notprosecute the appeal does not bar thelawful heirs of the deceased from doing so.REASON: Lawful heirs are consideredinterest party.

The validity of a judgment or orderof a court entered in a spec pro cannot beassailed collaterally unless the ground forthe attack is lack of juris or fraud by theparty sought to be charged with it in itsprocurement.

If the nullity of the judgment or orderassailed is for failure to comply with thestatutory req. which must be followedbefore such J/O may be entered, the remedyis to appeal from such, or if final, to apply

for relief under R38.

In a specpro, appeals may be takenat various stages of the proceedings sosong as the order, decree or judgmentconstitutes a final determination of therights of the parties so appealing.

A probate decree finally anddefinitively settles all questions concerning

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capacity of the testator and the properexecution and witnessing of his last will andtestament, irrespective of whether itsprovisions are valid. Appealable under Sec.1 (a).

Certiorari and Mandamus not A Substitutefor Appeal

If an interested party lost his remedy byappeal due to his own neglect, he cannotnow seek redress by certiorari andmandamus, it not appearing that the lowercourt has acted without juris.

GENERAL PRINCIPLE: In the absence ofstatutory provisions directing otherwise,any order, judgment or decree of theprobate court capable of being enforced, ortaking effect without further order, may beappealed from; and that no action of theprobate court can be appealed from whichrequires a subsequent order or judgment togive it effect. e.g., An order directing one toappear and submit to an examinationtouching any property in his possessionbelonging to an intestate, otherwise, heshall be committed to prison, isAPPEALABLE.

In this case, said person is legallyinterested in the order, thus entitled toappeal. He need not be legally interested inthe intestate proceedings proper.

OTHER INSTANCES WHERE APPEAL ISAVAILABLE

1. Appeal by SuretyWhen a surety of an exec/admin of

the estate of a deceased person is admittedas a party to an acctg made by suchexec/admin under R. 85 Sec. 11, he may beallowed to appeal from any order of thecourt approving or disapproving such acctg.

2 Appeal by Heir from Money Claim1) An heir, legatee or devisee who under

R86 S11 has been served with notice asto a money claim against the estatemay be allowed to appeal from an orderof the ct. approving such claim.

2) A creditor who under R87 S10 is allowedby the ct to bring an action for recoveryof property may be allowed to appeal.

3) A spec admin may be allowed to appealfrom an order disallowing a will.

3. Order for License to SellAn order for license to sell real

estate in admin proc is appealable.

4. Order Against BondAppealable. REASON: Such order

constitutes a definite pronouncement asrelates to his bond and to his movableproperty of which he will be deprived. Thus,he can appeal.

5. Order to contract ObligationAppealable. REASON: It affects

substantial rights of the parties and mayunnecessarily prolong the admin of theintestate estate to the detriment of theheirs.

6. Order Appointing AdminAppealable. This is a final

determination of the rts of the partiesthereunder.

7. Order Annulling Appointment ofGuardian

Appealable. An order refusing topermit a person to intervene in a probateproceeding where he claims to haveacquired the interest of one of the heirs ofthe deceased is likewise appealable.

8. Order Removing a GuardianAppealable. Constitutes a final

determination of his rights. An orderdeclaring a guardian incompetent islikewise appealable.

9. Inventories and Claims against theEstate

Re: inventories, claims against theestate and sale of the property of thedecedent are appealable.

10. Person declared incompetentAn order declaring one a spend thrift

and mentally and physically incompetent isappealable.

11. Order refusing to permit a party tointervene

Appealable if the party seeking tointervene is one who claims to have

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acquired the interest of one of the heirs ofthe estate.

Orders that are not appealable

1. Order directing admin to take action to

recover amount due to the estate;interlocutory.

This is purely interlocutory andcannot be the basis of an appeal. Why?Ewan ko. But I think its probably becauseof the application of the gen principle.

1. Order made in admin proc relating toinclusion or exclusion of items of

property in the inventory of exec/admin,interlocutory

This is purely discretionary,provisional and interlocutory. Subject tomodification or change at any time duringthe course of admin proc. Not conclusive ofthe rts of any one, and the order is not final.

2. Order Appointing SpecialAdmin/ReceiverMerely incidental to judicial proceedings.

The ct making the appt retains control overit and that it may modify, rescind, or revokethe same on sufficient grounds at any timebefore final judgment.

Sec. 2. Advance Distribution inspec pro. Notwithstanding a pendingcontroversy or appeal in proceedings tosettle the estate of a decedent, the ctmay, in its discretion and upon such termsas it may deem proper and just, permitthat such part of the estate as may not beaffected by the controversy or appeal bedistributed among the heirs or legateesupon compliance with the conditions setforth in R. 90 of these rules.

Fritz, sana naman ay hindi na nasayang ang

pagod mo. GOOD LUCK, 3-A!!!Aileen, Minnie& Ella

Appendix to Minnies Habeas Corpus OpusBy: The Regressing Whimsyland Kids Lourie,

Karreen & Jig + Party Pooper Ella

Habeas Corpus # 9

Moncupa v. Enrile

Facts: Moncupa et al were arrested & detained.He was alleged to be a National Democratic Fontstaff member. A Presidential Commitment Order(PCO) was issued vs. them. After 2 separateinvestigations, it was ascertained that Moncupawas not a member of any subversiveorganization. Both investigators recommendedhis prosecution only for illegal possession offirearms & subversive documents. Thepetitioners motions for bail were deined.Respondents claim that the privilege of the writof HC had been suspended as to Moncupa & fileda MTD stating Since the pet. is free & no longerunder the custody of the resps., the presentpetition for HC may be deemed moot &academic as in similar cases.

Held: Moncupa may have been released fr. hisdetention cell, but the restraints attached to histemporary release preclude freedom of action &under the Villavicencio v. Lukban rule warrantthe Courts relieving him of such restraints asmay be illegal. It is not physical restraint alonew/c is inquired into by the writ of habeas corpus.

The principle is clear. A release thatrenders a pet. for a WHC moot & academic mustbe one w/c is free fr. involuntary restraints.Where a person continues to be unlawfullydenied one or more of his constitutionalfreedoms, where there is present a denial of dueprocess, where the restraints are not merelyinvoluntary but appear to be unnecessary, &where a deprivation of freedom originally validhas, in the light of subsequent devts., becomearbitrary, the person concerned or thoseapplying in his behalf may still avail themselvesof the privilege of the writ.

Toyoto, et al. V. Ramos

Facts: Petitioners temporarily released fr.

detention. So, does writ lie?

Held: Ordinarily, a pet. for HC becomes mute &epidemic (he he) when the restraint on theliberty of the pets. Is lifted either temporarily orpermanently. But the instant case presents adiff. situation. The Q to be resolved is whetherthe State can reserve the power to re-arrest aperson for an offense after a court of competent jurisdiction has absolved him of the offense.Such a reservation is repugnant to thegovernment of laws & not of men principle.Under this principle the moment a person isacquitted on a crim charge he can no longer bedetained or re-arrested for the same offense.

Alimpoos v. CA

Facts: Reynaldo Mosquito has been accused ofRobbery w/ less Serious Physical Injuries. Hewas detained by virtue of a warrant of arrestwhich was issued without the observance of thelegal requirements for the issuance thereof.Mosquito filed a petition for Habeas Corpusbefore the Trial Court. Mosquito named asdefendants in the case the Prov. Fiscal and theprivate offended parties. he also filed a claim fordamages premised on Arts. 32 (4) and otherapplicable provisions of the Civil Code.

Issues:

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1. WON the writ of Habeas Corpus if the properremedy for Mosquito?2. WON damages may be awarded in a HabeasCorpus case?3. WON private offended party may take part inthe case?

Held:

1. The WHC is not the proper remedy. When awarrant of arrest is being assailed for improperpreliminary investigation, the remedy is apetition to quash the warrant of arrest or petitionfor reinvestigation of the case. It is the gen. rulethat a HC shld. not be resorted to when there isanother remedy available.

2. No. Damages cannot be awarded. The solefunction of the writ is to relieve fr. unlawfulimprisonment and ordinarily it cannot beproperly used for another purpose.

3. While the issuance of the writ connotes the

commencement of a civil action, the proceedingsfor HC is technically not yet a suit bet. privateparties. The proper party is the Chief of Police orthe person having the accused in detention andnot the private offended party. It is also only thefiscal who may appeal the order granting thewrit as mandated by Sec. 19 RULE 41 of theROC.

Salvana v. Saliendra

Facts: Salvana and Saliendra are the parents of15 year old Felicisima Salvana. The minor ispresently in the custody of a justice of peace.The parents filed a petition for WHC to regainparental authority over the minor. The pet. wasdenied on the ground that the parents are guiltyof abusing their child by forcing her to marryanother against the her wishes.

Issue: WON WHC should issue?

Held: It should issue. A WHC is the properlegal remedy to enable parents to regain thecustody of a minor daughter even though thechild is in custody of a 3rd person of her OWNFREE WILL. Neither the fact that the parentssought to compel her to marry against herwishes a legal ground for depriving parents theirparental authority over the child as to deny themthe right.

SUAREZ VS. CA

Facts: Respondent Manese filed a petition forwrit of HC vs. petitioner Renato Suarez, hismother & sister. She filed a motion to dismisswithout prejudice to her right to file anotheraction for custody of minor, contending that theissue as to who has rightful custody of the childcould be fully adjudicated in another action andnot in the present action for HC. TC grantedmotion but with prejudice.

Issue: WON order of dismissal with prejudice isres judicata to present action for custody ofminor & support

Held: The order of dismissal cannot beconsidered as a valid adjudication on the meritswhich would serve as a bar to the second actionfor custody of minor. TC dismissed the casewithout stating the reasons or the basistherefore, contrary to the constitutional mandatethat decisions rendered by the court must clearly& distinctly state the law & facts on which it isbased. It is worthy to note though that the

ground upon which the motion to dismiss wasfiled was erroneous since the question as to whoshall have custody of the child can be sufficientlyresolved in the petition for writ of HC pursuant toRule 102, ROC.

The controversy in the instant caseinvolves a litigation initiated by the naturalmother over the welfare & custody of her child,in which the State has a paramount interest. The fundamental policy in the Constitutionpromoting & protecting the welfare of childrenshould not be disregarded by a mere technicalityin resolving disputes which involve the family &youth.

GALVEZ VS. CA

Facts: Three separate information (1 homicide,2 frustrated homicide) were filed vs. Galvez(incumbent mayor of one of the towns in Bulacan... Peter, dont follow his footsteps, OK?) for thealleged shooting of the Vinculados. Said infos.were later withdrawn in a Motion by theprosecutor, but on the same day, filed fourseparate information (same three plus illegalpossession of firearms). Judge ordered the arrestof the petitioners since no bail wasrecommended.

Issue: WON petition for HC was properly filedtogether with the present petition for certiorariand mandamus

Held: Writ of HC and certiorari may be ancillaryto each other where necessary to give effect tothe supervisory powers of the higher courts. Thewrit reaches the body & jurisdictional matterswhile certiorari reaches the record. But HC doesnot lie where pet. has the remedy of appeal orcertiorari because it will not be permitted toperform the functions of a writ of error or appealfor the purpose of reviewing mere errors orirregularities in the proceedings of a courthaving jurisdiction over the person & subjectmatter.

Writ cannot be granted in the case at barsince petitioners failed to adduce anyjustification or exceptional circumstances whichwould warrant the grant of such writ. HC is not

ordinarily available in advance of trial todetermine jurisdictional questions that mayarise. In the absence of exceptionalcircumstances, the orderly course of trial shouldbe pursued & the usual remedies exhaustedbefore the writ may be invoked. Petition for HCis not the appropriate vehicle for asserting aright to bail or vindicating its denial.

PEOPLE VS. FIGUEROA

FACTS: The accused were found by thePhilippine Navy off the province of Palawan withuntaxed blue-seal cigarettes in their possession.

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They were brought to Manila and investigated.During this preliminary investigation, each of theaccused executed affidavits and waived theirrights under Art. 125 of the RPC (arbitrarydetention). On recommendation of the Manilafiscal, the accused were brought back to Palawanand another preliminary investigation was held,allegedly for the purpose of affirm(ing) the truthof the sworn statements. This time, however,

the accused declined counsel and readilyaffirmed their previous affidavits. Their counselfiled a MTQ, claiming that the information wasfiled without a preliminary investigation and, ifthere was, it was held in Manila and not Palawanwhere the alleged crime was committed. Thelower court granted the MTQ, holding that thepreliminary investigation was conductedhurriedly.

ISSUE: WON the trial court correctly dismissedthe information based on the lack of preliminaryinvestigation.

HELD: NO. Assuming that the trial courtfelt that the accused should have been givenmore ample chance and opportunity to be

heard in the preliminary investigation, what itshould have properly done was not to dismissthe information but to hold the case in abeyanceand conduct its own investigation or require thefiscal to hold a reinvestigation. The absence ofsuch investigation did not impair the validity ofthe information or otherwise render it defective.Much less did it affect the jurisdiction of thelower court over the case.

ENRILE VS. SALAZAR

FACTS: Juan Ponce Enrile, Gregorio Honasan,and the Panlilio spouses were arrested by PNPagents on a warrant of arrest issued by JudgeSalazar. They were denied bail, none beingrecommended in the information which charged

them with the crime of rebellion with murder andmultiple frustrated murder allegedly committedduring the failed coup attempt of Dec. 1990.Enrile and the Panlilios filed this petition forhabeas corpus, invoking denial of theconstitutional right to bail.

ISSUE:WON a petition for habeas corpus is the

appropriate vehicle for asserting a right to bail orvindicating its denial.HELD:

NO. The criminal case before JudgeSalazar was the normal venue for invoking thepetitioners right to have provisional libertypending trial and judgment. The correct coursewas for petitioner to invoke that jurisdiction by

filing a petition to be admitted to bail, claiming aright to bail per se by reason of the weakness ofthe evidence against him. Only after that remedywas denied by the trial court should the review jurisdiction of the Supreme Court have beeninvoked, and even then, not without firstapplying to the Court of Appeals if appropriaterelief was also available there. The Court will nolonger countenance pleas like the present thatclearly short-circuit the judicial process andburden it with the resolution of issues properlywithin the original competence of the lowercourts.

PAREDES VS. SANDIGANBAYAN

FACTS: A criminal complaint was filed againstGovernor Paredes for violation of the Anti-Graftand Corrupt Practices Act. A preliminaryinvestigation was held but the summons forParedes to appear therein did not reach him. Aninformation was subsequently filed and a

warrant of arrest issued against Paredes. He nowpetitions for habeas corpus on the ground thatthe preliminary investigation was invalid andthat the offense has prescribed.

ISSUE: WON the circumstances constitute validgrounds for the issuance of a writ of habeascorpus.

HELD: NO. The absence of a preliminaryinvestigation does not affect the courtsjurisdiction over the case nor impair the validityof the information or otherwise render itdefective. The remedy of the accused in such acase is to call the attention of the court to thelack of a preliminary investigation and demand,as a matter of right, that one be conducted. Thecourt, instead of dismissing the information,should merely suspend the trial and order thefiscal to conduct a preliminary investigation.

The defense of prescription of theoffense should be pleaded in the criminal action,otherwise it would be deemed waived. It is aproper ground for a motion to quash whichshould be filed before the arraignment of theaccused for whether the crime may still beprosecuted and penalized should be determinedin the criminal case not in a special proceedingof habeas corpus. All questions which may arisein the orderly course of a criminal prosecutionare to be determined by the court to whosejurisdiction the defendant has been subjected bythe law, and the fact that a defendant has agood and sufficient defense to a criminal charge

on which he is held will not entitle him to hisdischarge on habeas corpus.

ILAGAN V. ENRILE(When we went to Davao, Judge Quitain, the

Daddy of Mamay, introduced as to Atty. Ilaganwho was then pres. of Integrated Bar of the

Phils. Davao Chapter. May picture pa kami w/him.)

Facts: Atty. Ilagan was arrested in Davao City &detained on the basis of a mission orderallegedly issued by the Ministry of Natl.Defense. He was visited by 15 lawyers fr. IBPDavao Chapter. One of the visitors was alsoarrested & detinaed on the basis of an unsignedMO. After several days, another IBP member

was arrested. Petitioners argue that the arrestswere illegal & violative of the Consti, sincearrests cannot be made on the basis of missionorders. Resps. Answered that the Writ wassuspended as to them by virtue of Proc. #2045-A.

Held: IF the detained attys. Question theirdetention bec. of improper arrest, or that noprelim inv has been conducted, the remedy isnot a pet. for a writ of HC but a Motion for the TCto quash the Warrant of Arrest, &/or the info ongrounds provided by the rules or to ask for aninvestigation/ reinvestigation of the case.

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This pet. is now mood & academic bec.of criminal charges for rebellion filed vs. thelawyers.

Luna v. Plaza

Facts: Supporting the complaint for murder weresworn statements of prosecution witness in the

form of Q & A taken by the PC investigator, &subscribed & sworn to before the resp. Judge atthe time of filing comp. Judge read to theproecution witnesses the Q & A. This was howhe examined them. The latter declared thattheir answers were true, freely & voluntarilymade, & that they fully understood the Q & A &were willing to sign their respective affidavits.Judge issued warrant of arrest. Pet. filed writ forcertiorari on the ground that he was deprived ofliberty w/o due process since the imprisonment& detention was the result of a WOA issued byresp. judge in violation of law since the examwas not reduced to in writing in the form ofsearching Q & A. Judge claims substantialcompliance.

Held: There was substantial compliance. Theexistence of probable cause depends to a largedegree upon the finding or opinion of the judgeconducting the exam. RA 3828 does not prohibitthe Mun Judge fr. adopting the questions askedby the previous investigator.

The term searching Q & A means onlytaking into consideration the purpose of theprelim exam, w/c is to determine whether thereis a reasonable ground to believe that an offensehas been committed & the accused is probablyguilty thereof so that a warrant of arrest may beissued & the accused be held for trial, such Qshaving tendency to show the commission of thecrime & the perpetrator.

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Date post:	10-Apr-2018
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