2 Matute v. Court of Appeals

EN BANC
[G.R. No. L-26751. January 31, 1969.]
JOSE S. MATUTE , petitioner, vs. THE COURT OF APPEALS (Third

Division) and MATIAS S. MATUTE , respondents.
[G.R. No. L-26085. January 31, 1969.]
JOSE S. MATUTE , in his personal capacity and as Judicial Co-

Administrator of the Estate of Amadeo Matute Olave , petitioner, vs.
HON. JUDGE VICENTE P. BULLECER , Judge of the Court of First
Instance of Davao , Branch IV , and MARIANO NASSER , respondents.
[G.R. No. L-26106. January 31, 1969.]
JOSE S. MATUTE and LUIS S. MATUTE, as Intervenors in their

personal capacities in Civil Case No. 4252 of the Court of First
Instance of Davao, petitioners, vs. HON. VICENTE P. BULLECER,
Judge of the Court of First Instance of Davao, Branch IV; ATTY.
PATERNO R. CANLAS, DANIEL RIVERA, SR., PABLO V. DEL ROSARIO
and NICANOR D. VERGARA, as Defendants in Civil Case No. 4252, of
the Court of First Instance of Davao, respondents.
Antonio Enrile Inton for petitioner.

Paterno R. Canlas for respondents.
SYLLABUS
1. REMEDIAL LAW; SPECIAL PROCEEDINGS; JUDICIAL SETTLEMENT OF

ESTATE OF DECEASED PERSON; PROBATE COURT; JURISDICTION THEREOF IS
DETERMINED BY THE TOTAL VALUE OF ENTIRE ESTATE; COURT OF APPEALS IS
WITHOUT JURISDICTION IN INSTANT CASE. — In the settlement of an estate of a
deceased person, the rule remains that the jurisdictional amount is determined by the
total value of the estate, not by the value of the particular property or portion of the
estate subject to administration, since the question of administration is merely
incidents to the principal proceeding for the settlement and distribution of the whole
estate. It is therefore indubitable that the Court of Appeals has no jurisdiction to take
cognizance of CA-G.R. 37039-R which involves an estate worth more than P200,000
although the subject matter of the case is merely the right to collect the monthly rentals
due the estate in the sum of P5,000.
2. ID.; ID.; ID.; APPOINTMENT OF TWO OR MORE ADMINISTRATORS AND CO-
ADMINISTRATORS; JUDICIOUS MANAGEMENT OF A PORTION OF THE ESTATE BY CO-
ADMINISTRATORS ENHANCES THE VALUE OF ENTIRE ESTATE. — Where a co-
administrator is designated to administer a portion of the estate, he is no less an
administrator of the whole because his judicious management of a mere parcel
enhances the value of the entire estate, while his ine cient or corrupt administration
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thereof necessarily diminishes the value of the whole estate. Moreover, when two or
more administrators are appointed to administer separate parts of a large estate they
are not to discharge their functions in distant isolation but in close cooperation so as to
safeguard and promote the general interest of the entire estate.
3. ID.; ID.; ID.; ID.; SCOPE OF CO-ADMINISTRATOR'S TRUST. — The scope of a
co-administrator's trust encompasses the entire estate and is co- extensive in effect
with those of the other administrators; consequently, the value of the entire estate
should be the proper basis of the jurisdictional amount irrespective of the value of the
particular property or assets of the estate which are the objects of a separate
administration pending the settlement proceedings.
4. ID.; ID.; ID.; REMOVAL OF ADMINISTRATOR. — The settled rule is that the
removal of an administrator under Section 2 of Rule 82, Rules of Court, lies within the
discretion of the Court appointing him.
5. ID.; ID.; ID.; ID.; PROBATE JUDGE ENJOYS WIDE LATITUDE OF DISCRETION
BUT ADMINISTRATORS SHOULD BE GIVEN THEIR DAY IN COURT. — Probate judge
enjoys a wide latitude of discretion in the matter of the removal of executors and
administrators and he can cause their ouster at his own instance. However, before they
are deprived of their o ce they must be given the full bene t of a day in court, an
opportunity not accorded to the respondent herein.
6. ID.; ID.; ID.; ID.; REMOVAL OF ADMINISTRATOR IN THIS CASE AT BAR, A
NULLITY. — In the case at bar, it is indubitable that the probate judge issued the
controverted order removing the respondent as co-administrator without giving him the
opportunity to adduce his own evidence despite his explicit reservation that he be
afforded the chance to introduce evidence in his behalf in the event of denial of his
motion to dismiss and/or demurrer to evidence. We are of the view that the above
actuation of the probate judge constituted grave abuse of discretion which dooms his
improvident order as a nullity. Even without the respondent's reservation, it was the
bounden duty of the probate judge to schedule the presentation and reception of the
respondent's evidence before disposing of the case on the merits because only the
movants at that time had presented their evidence. This duty is projected into bolder
relief if we consider, which we must, that the aforesaid motion is in form as well as in
substance a demurrer to evidence allowed by Rule 35, Rules of Court, by virtue of which
the defendant does not lose his right to offer evidence in the event that his motion is
denied. The application of Rule 35 in special proceedings, like the case at bar, is
authorized by Section 2 of Rule 72, Rules of Court, which directs that in the "absence of
special provisions, the rules provided for in ordinary civil actions shall be, as far as
practicable, applicable in special proceedings."
7. ID.; ID.; ID.; ID.; DEFECT IN ACCOUNTING WHICH IS PENDING APPROVAL
IS NOT A GROUND FOR REMOVAL OF ADMINISTRATOR WITHOUT PROOF OF WILLFUL
NEGLIGENCE. — Where, while the 1964 account was still pending approval the probate
court ruled that respondent was un t to continue as co-administrator, it was premature
to use alleged defects in said account as ground for his removal because he will be
greatly prejudiced in the event that the account is nally approved and said alleged
in rmities are found to be non-existent or so trivial as not to affect the general validity
and veracity of the account.
8. ID.; ID.; ID.; ID.; FAILURE TO PAY TAXES DUE FROM THE ESTATE IS PER SE
NOT A COMPELLING REASON FOR THE REMOVAL OF AN ADMINISTRATOR. — It bears
emphasis that the failure to pay the taxes due from the estate is per se not a
compelling reason for the removal of an administrator, for "it may be true that the
respondent administrator failed to pay all the taxes due from the estate, but said failure
may be due to lack of funds, and not to a willful omission." In the case at bar there is no
evidence that the nonpayment of taxes was willful. The respondent alleged, and this
was unchallenged by the movants, he had paid the real property taxes in Davao covering
the years 1954 to 1966.
9. ID.; ID.; ID.; HEARING AND NOTIFICATION TO ALL KNOWN HEIRS AND
INTERESTED PARTIES IS ESSENTIAL FOR PROCEEDINGS IN THE APPOINTMENT OF
ADMINISTRATOR. — The requirement of a hearing and the noti cation to all the known
heirs and other interested parties as to the date thereof is essential to the validity of the
proceeding for the appointment of an administrator "in order that no person may be
deprived of his right or property without due process of law." Moreover, a hearing is
necessary in order to fully determine the suitability of the applicant to the trust, by
giving him the opportunity to prove his qualifications and affording oppositors, if any, to
contest the said application.
10. ID.; ID.; ID.; ID.; CHANGE OF ADMINISTRATOR. — This Court is not
prepared to sustain the validity of the appointment of the petitioner in place of the
former. The record does not disclose that any hearing was conducted, much less that
notices were sent to the other heirs and interested parties. The provision of Rule 83 of
the Rules of Court that if "there is no remaining executor or administrator,
administration may be granted to any suitable person," cannot be used to justify the
institution of Jose S. Matute even without a hearing because such institution has no
factual basis considering that there was a general administrator (Carlos V. Matute) who
remained in charge of the affairs of the Matute estate after the removal of Matias S.
Matute.
11. ID.; ID.; ID.; ID.; ID.; INSTANCE WHEN PROBATE COURT MOTU PROPRIO
NAMES AN ADMINISTRATOR. — Rule 83 of the Rules of Court evidently envisions a
situation when after the removal of the incumbent administrator no one is left to
administer the estate, thus empowering the probate court, as a matter of necessity to
name a temporary administrator (or caretaker), pending the appointment of a new
administrator after due hearing.
G.R. No. L-26085:
12. ID.; PLEADINGS AND PRACTICE; ANSWER; PERIOD OF TIME FOR
PLEADING. — Rule 11, Section 1 of the Revised Rules of Court gives the defendant a
period of fteen (15) days after service of summons within which to le his answer and
serve a copy thereof upon the plaintiff, unless a different period is xed by the court.
However, within the period of time for pleading, the defendant is entitled to move for
dismissal of the action on any of the grounds enumerated in Rule 16. If the motion to
dismiss is denied or if determination thereof is deferred, the movant shall le his
answer within the period prescribed by Rule 11, computed from the time he receives
notice of the denial or deferment, unless the court provides a different period (Rule 16,
Section 4). In other words, the period for ling a responsive pleading commences to
run all over again from the time the defendant receives notice of the denial of his
motion to dismiss.
13. ID.; ID.; ID:; DEFAULT; ORDER THEREOF IS PATENT NULLITY IN CASE AT
BAR. — In the case at bar, when defendant-petitioner was declared in default on April
16, 1966 the time for ling his answer had not yet even commenced to run anew
because on the said date his counsel had not yet received notice of the denial of the
motion to dismiss. The order of denial was received only on April 25, 1966, the day
when a copy of said order was mailed to the defendant-petitioner's counsel and when
the defendant-petitioner was declared in default. The trial judge acted in excess of
jurisdiction when he declared the defendant-petitioner in default. Consequently, the
herein controverted order of default is a patent nullity, an in rmity which likewise
afflicts, necessarily, the subsequent judgment by default and the order of execution.
14. ID.; ID.; ID.; ID.; DISTINCTION BETWEEN DEFENDANTS VALIDLY AND
DEFENDANTS ILLEGALLY DECLARED IN DEFAULT. — A defendant who is properly
declared in default is differently situated from one who is improvidently declared in
default. The former irreparably loses his right to participate in the trial, while the latter
retains such right and may exercise the same after having the order of default and the
subsequent judgment by default annulled and the case remanded to the court of origin.
The former is limited to the remedy set forth in Section 2, paragraph 3 of Rule 41 by
virtue of which he can contest only the judgment by default on the designated ground
that it is contrary to the evidence or the law; the latter, however, has the option to avail
of the same remedy or to forthwith interpose a petition for certiorari seeking the
nulli cation of the order of default even before the promulgation of a judgment by
default, or in the event that the latter has been rendered, to have both court decrees —
the order of default and the judgment by default — declared void.
15. ID.; ID.; MOTION TO DISMISS CONSIDERED AN ANSWER WHEN IT
RAISES ISSUES ON THE MERITS OF THE CASE. — It is not amiss to say that, at the very
least, the defendant-petitioner's motion to dismiss should have been considered as an
answer, since it raised issues on the merits of the case, such as the invalidity of the
alleged contract of lease. The defendant-petitioner should have been noti ed of the
hearing, and failure to give him an opportunity to appear in the court below tainted the
subsequent proceedings not only with irregularity but also with illegality. It follows,
therefore, that the petitioner was incorrectly declared in default, and the holding of the
trial of the case on the merits in his absence, without due notice to him, was a denial of
due process.
16. ID.; SPECIAL CIVIL ACTIONS; CERTIORARI; REMEDY OF CERTIORARI IS
PROPER WHEN DEFENDANT WAS ILLEGALLY DECLARED IN DEFAULT. — The remedy
of appeal provided in Rule 41, Section 2, paragraph 2 of the Rules of Court is properly,
though not exclusively, available to a defendant who has been validly declared in
default. It does not preclude a defendant who has been illegally declared in default from
pursuing a more speedy and e cacious remedy, like a petition for certiorari to have the
judgment by default set aside as a nullity. The defendant-petitioner's choice of the latter
course of action is correct for he controverts the judgment by default not on the ground
that it is not supported by evidence or it is contrary to law, but on the ground that it is
intrinsically void for having been rendered pursuant to a patently invalid order of default.
17. ID.; ID.; ID.; CONDITION SINE QUA NON FOR GRANTING WRIT OF
CERTIORARI; FILING OF MOTION FOR RECONSIDERATION; EXCEPTION. — While as a
matter of policy a motion for reconsideration in the lower court has often been
considered a condition sine qua non for the granting of a writ of certiorari, this rule
does not apply "where the proceeding in which the error occurred is a patent nullity," or
where "the deprivation of petitioner's fundamental right to due process . . . taints the
proceedings against him in the court below not only with irregularity but with nullity," or
when special circumstances warrant immediate and more direct action. The fact that
the defendant- petitioner had been deprived of due process, taken together with the
circumstance that a writ of execution had already been issued, perforce takes this case
outside of the purview of the rule requiring a previous motion for reconsideration.
18. ID.; APPEAL; NOT ADEQUATE REMEDY WHEN ORDER OF EXECUTION
HAS ISSUED. — Granting that an appeal is open to the defendant-petitioner, the same is
no longer an adequate and speedy remedy considering that the court a quo had already
ordered the issuance of a writ of execution and the carrying out of such writ loomed as
a great probability. This is in consonance with the doctrine enunciated in Vda. de
Saludes vs. Pajarillo and Bautista, 78 Phil. 754 wherein this Court held that an "appeal
under the circumstances was not an adequate remedy there being an order of
execution issued by the municipal court. " Hence, the rule that certiorari does not lie
when there is an appeal is relaxed where, as in the instant case, the trial court had
already ordered the issuance of a writ of execution.
G.R. No. L-26106:
19. ID.; SPECIAL CIVIL ACTIONS; CERTIORARI; REMEDY OF CERTIORARI
DOES NOT LIE IF APPEAL WAS AVAILABLE. — Where there is no showing that the
respondent Judge issued the disputed order dismissing with prejudice civil case 4252,
with grave abuse of discretion or without or in excess of jurisdiction, an ordinary appeal,
then, not a petition for certiorari, was the proper remedy available to the intervenors
Jose and Luis Matute who claim to be aggrieved by the dismissal. But having failed to
seasonably appeal from the aforesaid order of dismissal, the herein intervenors-
petitioners cannot avail of a petition for certiorari as a substitute remedy to challenge
the said order, which in the meantime had already become final.
20. ID.; ID.; ID.; REMEDY WHEN VOID ORDER OF DEFAULT WAS ISSUED. —
The respondent Judge acted in excess of jurisdiction when he issued, after having
dismissed the principal complaint, the herein controverted order of default and
judgment by default for then there was nothing left to be adjudicated. Said decrees
having been rendered in excess of jurisdiction, certiorari will lie to have them annulled.
21. ID.; PROCEDURE; PARTIES NOT REPRESENTED BY COUNSEL SHOULD
SIGN PLEADING AND STATE MAILING ADDRESS. — When the herein intervenors-
petitioners led their motion to intervene, they were not represented by counsel, and
failed to disclose their respective addresses or at least the address of one of them,
contrary to the requirement of Section 5 of Rule 7 of the Rules of Court that a "party
who is not represented by an attorney shall sign his pleading and state his address." If
the pertinent orders and notice were not sent to the intervenors, it was because of their
failure to disclose their mailing addresses.
22. ID.; ID.; SERVICE; NOTICE TO PLAINTIFF ESTATE DEEMED NOTICE TO
INTERVENORS. — Since the intervenors virtually allied with the plaintiff estate by
adopting in toto the latter's complaint without ling a separate complaint in
intervention, it is not without justi cation to rule, considering the particular
circumstances obtaining, that notice to the plaintiff estate should be deemed su cient
notice to the intervenors.
23. ID.; ID.; ORDERS; INTERLOCUTORY ORDER; POWER OF COURT OVER
SAME. — It is relevant to emphasize that an order deferring the resolution of a motion
to dismiss, being an interlocutory order, may be altered or revoked by the trial court
during the pendency of the main action. It is settled that an "interlocutory order or
decree made in the progress of a case is always under the control of the court until the
nal decision of the suit, and may be modi ed or rescinded upon su cient grounds
shown at any time before nal judgment." Of similar import is the ruling of this Court
declaring that "it is rudimentary that such (interlocutory) orders are subject to change in
the discretion of the court." Moreover, one of the inherent powers of the court is "to
amend and control its process and orders so as to make them conformable to law and
justice."
DECISION
CASTRO , J : p
The present three petitions for certiorari with preliminary injunction (L-26751, L-
26085 and L-26106) were separately interposed within the short span of ve months
by Jose S. Matute, one of the fteen heirs to the Amadeo Matute Olave estate. Because
these petitions are intertwined in several material aspects and arose from a common
environmental setting - the intrafraternal strife among the Matute heirs which has
unduly delayed for more than a decade the settlement of the Matute estate - this Court
has decided to embody in a single decision the independently discussed resolutions of
the issues raised in the said petitions.
L-26751
Although the petition in L-26751 was led the latest (October 27, 1966), we shall
dispose of it rst because our pronouncements and observations in this case have
direct and concrete relevance to the other two. The antecedent events trace their origin
to August 20, 1965 when Carlos S. Matute, one of the Matute heirs and a full-blood
brother of both the petitioner and the herein respondent Matias S. Matute, led in
special proceeding 25876 (settlement of the Matute estate) a petition praying for the
removal of Matias as co-administrator and his (Carlos') appointment in such capacity.
Carlos alleged that "for a period of more than two years from the date of his
appointment (on May 29, 1963), said Matias S. Matute has neglected to render a true,
just and complete account of his administration," and that he "is not only incompetent
but also negligent in his management of the estate under his charge consisting of ve
haciendas on account of a criminal charge for murder led against him which is
occupying most of his time."
The respondent Matias claims that he forthwith interposed an opposition to the
aforesaid petition, and the record discloses that he later led an amended opposition
dated August 25, 1965 wherein he contended.
"1. That the allegation — that the herein co-administrator for the two
years of his administration, 1963 and 1964, did not render any accounting is
completely without basis and false, because the records show that under date of
May 20, 1964, he submitted to this Honorable Court with copies furnished to all
the parties concerned, including Carlos S. Matute, his accounting for 1963, that on
Feb. 8, 1965, he led his accounting for 1964, which accounts for 1963 and 1964
have been approved by majority of the heirs composing 63% interests in the
estate as shown by the attached manifestation . . .
"2. That his competence to act as administrator has been established
to the satisfaction of this Honorable Court as evidenced by his appointment by a
fixed, final and executory order dated May 29, 1963; and Carlos S. Matute is now
estopped from denying his [Matias S. Matute's] competence and quali cation by
reason of his failure to object to the appointment of herein Judicial Administrator
at the time application was made therefor;
"3. . . .The records of the pertinent case in the Court of First Instance of
Davao will easily discover that the `criminal charge' supported by perjured
testimony is nothing but a trumped-up affair initiated by persons intent on
intimidating the herein Judicial Administrator into betraying his sworn duty to
protect and safeguard the interest of the Estate. The records of the said case will
also reveal that it has not occupied any time at all of the herein Judicial
Administrator, for aside from a single hearing last December 1964 on his
application for bail . . . no hearing has been held on the said case up to the
present."
Subsequently, Matias led a memorandum dated September 12, 1965 in support

of his foregoing opposition.
On September 21, 1965 the heirs Agustina Matute Candelario, Elena Matute
Candelario and Amadeo Matute Candelario and their mother and legatee Anunciacion
Candelario, moved for the immediate appointment of Agustina Matute Candelario,
Carlos S. Matute and Jose S. Matute, herein petitioner, as joint co-administrators or
anyone of them in place of Matias S. Matute, whose removal they also sought together
with the ouster of the general administrator Carlos V. Matute, on the following
additional grounds:
1. Despite the vast resources and income of the estate, the present
administrators have failed to pay even the annual real property tax for the years
1904 and 1965;
2. The nancial statements of both administrators were not properly

signed and authenticated by a certi ed public accountant, and do not contain the
exact entries as led by former administrators containing the daily and monthly
entries of receipts and disbursements;
3. Both administrators have deliberately failed to le their inventories
and statements of accounts on time, and did so only when ordered by the probate
court;
4. Both administrators have made unauthorized disbursements as

shown by their financial statements; and
5. The probate court has discretion to remove the administrator.
It appears that during the reception of evidence conducted on December 29,

1965 by the probate court (Branch IV of the Court of First Instance of Manila with
Honorable Emigdio Nietes as the then presiding judge), Carlos S. Matute and the
Candelario-Matute heirs submitted their respective lists of exhibits in support of their
motions to oust Matias. On January 8, 1966 Matias led a written objection to the
admission of the movants' exhibits on the ground that the same were hearsay, self-
serving, irrelevant and/or mere photostatic copies of supposed originals which were
never properly identi ed nor shown in court. Four days later, or on January 12, 1966, the
counsel for Matias led with leave of court a "Motion to Dismiss and/or Demurrer to
Evidence" which avers that "there is no su cient evidence on record to justify and
support the motions for the removal of the herein co-administrator Matias S. Matute."
In the same motion, said counsel reserved the right to introduce evidence in behalf of
his client should the foregoing motion be denied.
On January 31, 1966 the probate court issued an order, the dispositive portion of
which reads:
"FOR ALL THE FOREGOING, the Court hereby removes co-administrator,
Matias S. Matute, as such co-administrator of the estate and orders him to submit
a nal accounting of his administration together with his past administration
accounts which have not been approved, and, in his stead appoints Jose S.
Matute, a brother by the same mother of Matias S. Matute, as co-administrator,
who is hereby required to put up a bond of P15,000.00, and thereafter
immediately qualify in his commission and assume the responsibility of co-
administrator. . . ."
Forthwith, Matias interposed with the Court of Appeals a petition for certiorari
with preliminary mandatory injunction (CA-G.R. 37039-R) dated February 1, 1966,
praying that the aforesaid order of January 31, 1966 be set aside as a nullity for having
decreed his removal without due process and the appointment of Jose S. Matute
without the requisite hearing. On March 4, 1966 the Court of Appeals gave due course
to the aforesaid petition and resolved to grant a writ of preliminary injunction against
Jose S. Matute and the Honorable Judge Emigdio Nietes, respondents in CA-G.R.
37039-R, conditioned on the ling of a P1,000 bond by the therein petitioner Matias, the
respondent herein. On March 22, 1966 Jose S. Matute moved for the dismissal of the
abovementioned petition on the ground that the Court of Appeals does not have
jurisdiction to take cognizance of the same since the value of the estate involved is
more than P200,000. He further contended that the value of the Amadeo Matute Olave
estate for purposes of jurisdiction had already been resolved in CA-G.R. 35124-R where
the Court of Appeals refused to take jurisdiction over a petition for certiorari contesting
the appointment of Matias Matute as co- administrator, on the ground that the value of
the Matute estate was placed at P2,132,282.72 as evidenced by a "Compromise
Agreement" dated April 12, 1956 which was duly signed by all of the heirs.
Despite repeated urgent motions led by Jose S. Matute praying that the Court
of Appeals resolve with dispatch the issue of jurisdiction, the said appellate tribunal
instead required then respondent Jose S. Matute to answer, which he did. However, on
October 27, 1966 herein petitioner Jose S. Matute interposed the instant petition for
certiorari with preliminary injunction against the Court of Appeals and Matias Matute,
challenging the jurisdiction of the respondent Court of Appeals upon two basic
contentions:
"The Court of Appeals has no jurisdiction to entertain, give due course, and
much more to issue a writ of preliminary injunction, against the petitioner, Jose S.
Matute, and respondent Judge Emigdio Nietes in CA-G.R. No. 37039-R . . .
because the estate of Amadeo Matute Olave is worth more than P200,000.00; and
"The same Court of Appeals in CA-G.R. No. 35124-R, on January 27, 1965,
special fourth division, has ruled that the Court of Appeals has no jurisdiction on
the estate of Amadeo Matute Olave in the matter of the appointment and removal
of its administrators."
The respondent Matias Matute does not controvert the petitioner's claim that the
value of the estate of their deceased father exceeds P200,000. He maintains, however,
that the respondent Court of Appeals has jurisdiction over CA-G.R. 37039-R "because
the subject matter involved is merely .. the right to collect the (monthly) rentals due the
Estate in the sum of P5,000.00" pursuant to a contract of lease which he executed in
favor of one Mariano Nasser covering ve haciendas of the estate under his separate
administration.
The foregoing assertion does not merit credence. A searching review of the
record - from the initial petition led by Carlos Matute to oust the respondent as co-
administrator up to the latter's petition for certiorari led with the Court of Appeals
impugning the validity of the abovementioned order of January 31, 1966 which
removed him as co-administrator and appointed the petitioner in his place — reveals no
single pleading, statement, contention, reference or even inference which would justify
the respondent's pretension that the instant controversy is a mere contest over the
right to collect a P5,000 rental. In bold contrast, the record vividly chronicles the
controversy as a bitter ght for co-administration: the removal of the respondent as co-
administrator and the appointment of anyone of the movants and the herein petitioner
as new co-administrator. Indeed, the principal con ict gravitates over the right to co-
administer the vast Amadeo Matute Olave estate. This is the same issue underlying the
respondent's abovementioned petition in CA-G.R. 37039-R. The respondent's prayer in
said petition unmistakably indicates that the dispute pertains to the right to co-
administer in general, not the mere authority to collect a P5,000 monthly rental. The
said prayer reads:
"1. That an ex-parte writ of preliminary mandatory injunction be issued
enjoining and/or prohibiting the respondent Judge from approving the
administrator's bond that will be led by respondent Jose S. Matute and in
issuing the letters of administration of the latter, and from issuing Orders
incidental and/or connected with the exercise and performance of acts of
administration of said respondent Jose S. Matute; likewise enjoining and
prohibiting respondent Jose S. Matute himself, and/or through his counsels,
agents and representatives from taking physical possession of the different
haciendas under the exclusive administration and management of herein
petitioner and from performing and exercising acts of a duly and legally
appointed administrator, upon ling a bond in such amount that this Honorable
Tribunal may fix;
"2. That the Order of the respondent Judge dated January 31, 1966,
removing herein petitioner as co-administrator of the Estate of Amadeo Olave and
appointing respondent Jose S. Matute as co- administrator without presentation
of evidence, be declared null and void and of no force and effect. . . . "
In ne, the pith of the controversy is the right to co- administer the entire estate.
In this regard, the ruling in Fernandez, et al. vs. Maravilla 1 is determinative of the
jurisdictional issue posed here. In said case, this Court ruled that in a contest for the
administration of an estate, the amount in controversy is deemed to be the value of the
whole estate, which total value should be the proper basis of the jurisdictional amount.
Consequently, the Court proceeded to conclude that the Court of Appeals does not
have jurisdiction to issue writs of certiorari and preliminary injunction prayed for in a
petition concerning a con ict over administration arising as an incident in the main
probate or settlement proceeding if in the rst place the principal case or proceeding
falls outside its appellate jurisdiction considering the total value of the subject estate.
This Court in the aforesaid Maravilla case elaborated thus:
"The Court of Appeals, in the decision appealed from, assumed jurisdiction

over the present case on the theory that `the amount in controversy relative to the
appointment of Eliezar Lopez as special co-administrator to protect the interests
of the respondents (herein petitioners) is only P90,000.00 more or less, i.e., one
fourth of the conjugal property' (of respondent and the deceased Digna Maravilla)
which, as per inventory submitted by the respondent as special administrator, is
valued at P362,424.90. This theory is untenable. Note that the proceedings had
on the appointment of Eliezar Lopez as special co-administrator are merely
incidental to the probate or testate proceedings of the deceased Digna Maravilla.
xxx xxx xxx
That the Court of Appeals have no appellate jurisdiction over the said
testate proceedings cannot be doubted, considering the properties therein
involved are valued at P362,424.90, as per inventory of the special administrator.
". . . Not having appellate jurisdiction over the proceedings in probate (CA-
G.R. No. 27478-R), considering that the amount involved therein is more than
P200,000.00, the Court of Appeals cannot also have original jurisdiction to grant
the writs of certiorari and prohibition prayed for by respondent in the instant case,
which are merely incidental thereto.
"Note also that the present proceedings under review were for the
annulment of the appointment of Eliezar Lopez as special co- administrator and
to restrain the probate court from removing respondent as special administrator.
It is therefore, a contest for the administration of the estate and, consequently, the
amount or value of the assets of the whole estate is the value in controversy. (4
C.J.S. 204.) It appearing that the value of the estate in dispute is much more than
P200,000.00, the Court of Appeals clearly had no original jurisdiction to issue the
writs in question." (italics supplied)
Like in the aforecited Maravilla case, the instant intrafraternal controversy

involves a contest over administration, an incident in the settlement of the vast Matute
estate. Considering that the value of the said estate is more than P200,000, and
considering further that as enunciated in the Maravilla case the total value of the
subject estate determines the jurisdictional amount anent disputes over administration
arising as incidents in a probate or settlement proceeding, like the case at bar, then it is
indubitable that the respondent Court of Appeals does not have jurisdiction over CA-
G.R. 37039-R nor the judicial authority to grant the writs of certiorari and prohibition
prayed for therein.
Herein respondent insists, however, that even granting that the actual
controversy pertains to administration, such contested administration does not
encompass the whole estate but is limited to the collection of a P5,000 monthly rental,
which sum should be the basis of the jurisdictional amount, not the value of the whole
estate. In support of his thesis, the respondent alleges that during his incumbency as
co-administrator, ve haciendas in Davao belonging to the estate of his deceased
father were consigned to his separate administration; that in his capacity as co-
administrator he leased on February 10, 1965 said haciendas to one Mariano Nasser
for P5,000 a month; that by virtue of the said lease contract, the possession,
management and administration of the said properties were transferred to the lessee
until the expiration of the contract; that consequently, only the collection of the monthly
rental of P5,000 remains as the subject of administration. The foregoing contention of
the respondent is patently untenable.
1. The averment of the respondent that the controversy centers on the
collection of the alleged P5,000 monthly rental and that the contest over administration
is limited thereto, does not find any support in the record.
2. The rule remains that the jurisdictional amount is determined by the total
value of the estate, not by the value of the particular property or portion of the estate
subject to administration, since the question of administration is merely incidental to
the principal proceeding for the settlement and distribution of the whole estate.
3. The respondent's impression that a co-administrator's trust and
responsibility are circumscribed and delimited by the size and value of the particular
property or portion of the estate subject to his separate administration, is erroneous.
Although a co-administrator is designated to administer a portion of the estate, he is no
less an administrator of the whole because his judicious management of a mere parcel
enhances the value of the entire estate, while his ine cient or corrupt administration
thereof necessarily diminishes the value of the whole estate. Moreover, when two or
more administrators are appointed to administer separate parts of a large estate they
are not to discharge their functions in distant isolation but in close cooperation so as to
safeguard and promote the general interests of the entire estate. The teaching in Sison
vs. Teodoro 2 is of positive relevance. In the said case, the probate court charged
against the entire estate the compensation of an administrator who was assigned as
judicial administrator representing the interests of one of the two heiresses. The other
heiress whose interest was represented by the executor opposed the award on the
ground that the said administrator had not rendered service to the estate but only to his
wife, the heiress whom he represented. On appeal, this Court upheld the award and
dismissed the opposition:
"This argument erroneously assumes that because Carlos Moran Sison
was `judicial administrator representing the interests of Priscila F. Sison' he was
such administrator `solely for the purpose of protecting Priscila's interests,' and
not to protect those of the estate. No words are needed to explain that in general,
the interest of the heir coincides with those of the estate - the bigger the estate the
better for the heir. Therefore to protect the interest of heiress Priscilla usually
meant to favor the interest of the estate (sic) .. Again, the argument presumes that
an administrator appointed by the Court for the purpose of giving representation
to designated heirs, is not deemed administrator of the estate. This assumption
has no legal foundation, because it is admitted practice, where the estate is large,
to appoint two or more administrators of such estate to have different interests
represented and satis ed, and furthermore, to have such representatives work in
harmony for the best interests of such estate. (In re Drew's Estate, 236 N.W. 701,
24 C.J. p. 1183)" (italics supplied)
Verily, therefore, the scope of a co-administrator's trust encompasses the entire

estate and is co-extensive in effect with those of the other administrators;
consequently, the value of the entire estate should be the proper basis of the
jurisdictional amount irrespective of the value of the particular property or assets of the
estate which are the objects of a separate administration pending the settlement
proceedings.
In view of all the foregoing, we are of the consensus that the respondent Court of
Appeals has no jurisdiction to take cognizance of CA-G.R. 37039-R, and consequently
was without power to issue or grant the writs of certiorari and prohibition prayed for in
said case.
Notwithstanding that the herein petitioner delimited the issue, as set forth in his
petition of certiorari, to one of jurisdiction of the respondent Court of Appeals over CA-
G.R. 37039-R, in subsequent pleadings and manifestations, however, the parties herein
mutually expanded the issue to include the question of the legality of the controverted
order of January 31, 1966 in CA-G.R. 37039-R. As a matter of fact, the respondent, in a
"Petition to Resolve" dated July 18, 1967, prayed "that a decision on the merits in this
case be now rendered." To this manifestation, the petitioner replied "that he has no
objection, as in fact, he also prays that this case be decided at the earliest by the
Highest Tribunal."
Since the respondent Court of Appeals does not have jurisdiction over CA-G.R.
37039-R, we are of the considered opinion that this Court can forestall further delay in
the already protracted proceedings regarding the settlement of the Matute estate if it
now proceeds to resolve the issue of legality of the aforementioned disputed order,
rather than wait for the parties to come anew on a separate petition in quest for a
verdict on the said issue. Moreover, both the petitioner and the respondent private
party have manifested and elaborated their respective views on this issue and prayed
and pressed for a decision thereon.
We shall now discuss separately the twin aspects of the foregoing controverted
order, namely, (1) the removal of the respondent as co- administrator of the Matute
estate, and (2) the appointment of the petitioner as the new co-administrator.
The respondent contends that the disputed order removing him as co-
administrator is a patent nullity for the following reasons:
(1) He was removed in wanton disregard of due process of law
because the probate judge arbitrarily deprived him of his day in court;
(2) The evidence adduced by the movants is manifestly insu cient, if

not devoid of probative value, to warrant his removal; and
(3) He was removed not on the grounds speci cally invoked by the
movants but for causes discovered motu proprio by the probate judge in the
records of special proceeding 25876 and without affording him the opportunity to
rebut the findings of the said judge.
Upon the other hand, the petitioner advances the following reasons in support of
the order of removal;
(1) The probate judge accorded the respondent all the opportunity to
adduce his evidence but the latter resorted to dilatory tactics such as ling a
"motion to dismiss or demurrer to evidence"
(2) The evidences presented to sustain the removal of the respondent
are incontrovertible since aside from being documentary, they are parts of the
record of special proceeding 25876; and
(3) The evidence on record conclusively supports the ndings of the

probate judge.
The settled rule is that the removal of an administrator under Section 2 of Rule 82
lies within the discretion of the court appointing him. As aptly expressed in one case, 3
"The su ciency of any ground for removal should thus be determined by the said court,
whose sensibilities are, in the rst place, affected by any act or omission on the part of
the administrator not conformable to or in disregard of the rules or the orders of the
court." Consequently, appellate tribunals are disinclined to interfere with the action
taken by a probate court in the matter of the removal of an executor or administrator
unless positive error or gross abuse of discretion is shown. 4
In the case at bar, we are constrained, however, to nullify the disputed order of
removal because it is indubitable that the probate judge ousted the respondent from
his trust without affording him the full bene t of a day in court, thus denying him his
cardinal right to due process.
It appears that shortly after the reception of evidence for the movants Carlos
Matute and the Candelario-Matute heirs, the respondent led on January 8, 1966 a
veri ed objection to the admission in evidence of the movants' exhibits on the ground
that the same were hearsay, self-serving, irrelevant and/or mere photostatic copies of
supposed originals which were never properly identi ed nor produced in court. Four
days later, or on January 12, 1966, the respondent led with leave of court a "Motion to
Dismiss and/or Demurrer to Evidence," the pertinent and material portion of which
reads:
". . . considering the speci c Objection to each exhibit contained in said
Objections to Admission of Movants' Exhibits and considering further the ruling
of this Honorable Court in open court that pleadings ed in this case are evidence
only of the fact of their ling and not of the truth of the statements contained
therein and considering still further the fact that no competent single witness was
presented by movants in support of their respective contentions, we submit that
there is no su cient evidence on record to justify and support the motions for
removal of the herein co-administrator Matias S. Matute and in the light of the
authorities hereinbelow cited, the motions to remove Matias S. Matute must be
dismissed for insufficiency of evidence:
". . . However, in the remote possibility that this instant motion be denied by
this Honorable Court, the herein co-administrator expressly reserves his right to
present his own evidence .. at least ve (5) days from the receipt of said denial . "
(italics supplied) Instead of resolving the foregoing motion, the probate judge
issued the controverted order removing the respondent as co-administrator
without giving him the opportunity to adduce his own evidence despite his explicit
reservation that he be afforded the chance to introduce evidence in his behalf in
the event of denial of his motion to dismiss and/or demurrer to evidence. We are
of the view that the above actuation of the probate judge constituted grave abuse
of discretion which dooms his improvident order as a nullity. In fact, even without
the respondent's reservation, it was the bounden duty of the probate judge to
schedule the presentation and reception of the respondent's evidence before
disposing of the case on the merits because only the movants at that time had
presented their evidence. This duty is projected into bolder relief if we consider,
which we must, that the aforesaid motion is in form as well as in substance a
demurrer to evidence allowed by Rule 35, by virtue of which the defendant does
not lose his right to offer evidence in the event that his motion is denied. Said
Rule states:
"After the plaintiff has completed the presentation of his evidence, the
defendant without waiving his right to offer evidence in the event the motion is
not granted, may move for a dismissal on the ground that upon the facts and the
law the plaintiff has shown no right to relief." (italics supplied)
The application of the abovecited Rule in special proceedings, like the case at
bar, is authorized by section 2 of Rule 72 which direct that in the "absence of special
provisions, the rules provided for in ordinary civil actions shall be, as far as practicable,
applicable in special proceedings."
But what is patently censurable is the actuation of the probate judge in removing
the respondent, not on the strength of the evidence adduced by the movants (not a
single exhibit or document introduced by the movants was speci cally cited in the
disputed order as a justi cation of the respondents' ouster), but on the basis of his
(judge's) ndings which he motu proprio gleaned from the records of special
proceeding 25876, without affording the respondent an opportunity to controvert said
ndings or in the very least to explain why he should not be removed on the basis
thereof.
The probate judge did nd, as essayed in his disputed order, that the respondent
"has shown indifference to his duties as such co- administrator of the estate" as
evidenced by:
(1) the disapproval of his 1964 account by the probate court in an
order dated January 5, 1966 due to his "non-appearance and non- submission of
evidence to sustain his account on the date set for the presentation of the same;
(2) the considerable decrease in the income of the properties under his
charge, as re ected in said 1964 account, which circumstance "does not speak
well of his diligence and attention to the administration of said properties; and
(3) the failure of said 1964 account to disclose the number of calves
born during the accounting period, "thereby indicating a palpable omission of fact
which directly reduced the value of the income or the increase of the assets of the
estate."
But, signi cantly, the movants did not speci cally invoke the aforesaid grounds in
support of their petition to oust the respondent. All of the said grounds, which in the
mind of the probate judge exposed the supposed indifference and incompetence of the
respondent in the discharge of his trust, are based on alleged defects of the
respondent's 1964 account. Under these circumstances, it behooved the probate judge
to inform the respondent of his ndings before ordering the latter's removal. We
concede that the probate judge enjoys a wide latitude of discretion in the matter of the
removal of executors and administrators and he can cause their ouster at his own
instance. However, before they are deprived of their o ce they must be given the full
benefit of a day in court, an opportunity not accorded to the respondent herein.
Without forgetting such patent denial of due process, which rendered the order
of removal a nullity, let us examine the merits of the probate judge's motu proprio
findings to determine whether they warrant the ouster of the respondent.
As proof of the respondent's "indifference" in the discharge of his duties, the
probate judge cited the court's order of January 5, 1966 disapproving the respondent's
1964 account for his failure to personally appear on the date set for the submission of
evidence in support of the said account. It must be emphasized, however, that the
respondent, two days before the issuance of the aforesaid order removing him as co-
administrator, seasonably moved for the reconsideration of the aforecited order of
January 5, 1966 on the ground that his failure to personally attend the scheduled
hearing was due to illness on his part. Evidently, when the probate court decreed the
removal of the respondent, the order disapproving his 1964 account, which was used
as one of the principal justi cations for his removal as co-administrator, was not yet
final as it was still subject to possible reconsideration. As a matter of fact, on February
19, 1966 the same probate judge set aside the aforesaid order of January 5, 1966,
thus:
"Considering that it will be to the bene t of all the parties concerned if
former co-administrator Matias S. Matute will be allowed to substantiate the
accounting which he submitted to this Court but which was disapproved on
January 5, 1966 for his failure to personally appear at the hearing held for the
purpose of substantiating said accounting, his motion for reconsideration led on
January 28, 1966 is hereby granted and the order dated January 5, 1966
disapproving the accounting submitted by Matias S. Matute is set aside." (italics
supplied)
With the order of January 5, 1966 thus revoked, the probate judge's conclusion
that the respondent was "indifferent" to his duties as co- administrator as evidenced by
the disapproval of his 1964 account loses its principal basis.
Again using the 1964 account of the respondent as basis of his nding that the
respondent was guilty of disinterest in the discharge of his trust, the probate judge
stressed that "a veri cation of said accounting shows that the income of the properties
under his (respondent's) charge were very much reduced which does not speak well of
his diligence and attention to the administration of the said properties," and that said
account failed to report the number of "offspring of the cattle during the period of
accounting belonging to the estate, thereby indicating a palpable omission of fact
which directly reduced the value of the income or increase of the assets of the estate."
It is pertinent to emphasize here that the said 1964 account is still pending approval,
hence it was premature to use alleged defects in said account as grounds for the
removal of the respondent. If it is now ruled that the respondent is un t to continue as
co-administrator because of the alleged in rmities in his account for 1964, the
respondent will be greatly prejudiced in the event that said account is nally approved
and the said defects are found to be nonexistent or so trivial as not to affect the
general validity and veracity of the account. Assuming, however, that the probate judge
correctly observed that the said account re ects a big reduction in the income of the
haciendas under the separate administration of the respondent, this fact alone does
not justify the conclusion that the latter did not exercise due care and zeal. There is no
proof that the decrease in income had been caused by the respondent's willful
negligence or dishonesty. Needless to stress, varied factors, some beyond the control
of an administrator, may cause the diminution of an estate's income.
Anent the failure to report the number of calves born during the accounting
period, granting that the same is true, there is however no evidence on record to prove
that the said omission was deliberate or designed to prejudice the estate. It could have
been either an honest mistake or mere inadvertence. In the absence of competent
proof to the contrary, good faith must be presumed. The probate judge should have
required the respondent to explain the said omission instead of branding outright said
omission as "palpable."
In his excursion into the records of special proceeding 25876, the probate judge
also found a copy of a so-called "Compliance" submitted by the respondent which
reported "a very staggering amount of over One Million Pesos supposedly given to the
heirs" as advances. The probate judge proceeded to observe that the "record does not
show that the said advances to the heirs were authorized by the Court in the amounts
made to appear in the `Compliance.'" He added that a "veri cation of the record will
show that may be part of this amount supposedly paid by the co-administrator to the
heirs were authorized by the Court but a greater volume of the same was obviously not
authorized." On account of this particular nding, the probate court concluded, without
equivocation, that the respondent had been acting without previous authority from the
probate court. Unfortunately again, the respondent was not afforded the opportunity to
present his side and if possible to controvert the said nding or correct the
impressions of the judge. Hearing the respondent on this point is imperative because,
like the other grounds upon which the probate judge anchored the order of removal, it
was not put in issue by the movants, neither was a copy of said "Compliance" submitted
in evidence. It bears emphasis that if there were unauthorized payments of advances to
some heirs or simulated grants as the probate judge appears to theorize, then it is
most surprising why the prejudiced Matute heirs, litigation-proved as they are, did not
impugn the so- called "Compliance." Furthermore, not one of the movants interested in
the removal of the respondent speci cally charged the latter with unauthorized or
fictitious payments of advances. It should also be noted that the said "Compliance" was
submitted by the respondent in response to the probate court's order for the
submission of "a list of the heirs who have personally received the advances from
administration," not from the respondent alone. It stands to reason, therefore, that the
said "Compliance" could very well be a cumulative list of all the advances given and
received by the Matute heirs from the several administrators of the Matute estate since
1955. In the absence of concrete evidence that the said "staggering amount" of over a
million pesos in advances was disbursed by the respondent alone during his
beleaguered term which commenced only in 1963, we have no recourse but to jettison
the adverse conclusion of the probate judge. What the probate judge should have done
was to afford Matias the chance to explain and substantiate the facts and the gures
appearing in the aforesaid "Compliance," which unfortunately does not form part 47 of
the record before us. The respondent asserts that if only the probate judge "took pains
to examine fully the voluminous records of the Matute estate, and as re ected in the
very `Compliance' submitted to the Court . . . any disbursement given to the heirs by all
the administrators of the Estate were by virtue of the several Orders of the Probate
Court issued upon joint motion of all the heirs for their monthly maintenance and
support."
It likewise appears that the respondent was removed partly due to his failure to
pay the inheritance and estate taxes. In this regard, it bears emphasis that the failure to
pay the taxes due from the estate is per se not a compelling reason for the removal of
an administrator, for "it may be true that the respondent administrator failed to pay all
the taxes due from the estate, but said failure may be due to lack of funds, and not to a
wilful omission." 5 In the case at bar there is no evidence that the nonpayment of taxes
was wilful. On the contrary, the respondent alleged, and this was unchallenged by the
movants, that while the previous administrators left the taxes unpaid, he had paid the
real property taxes in Davao covering the years 1954 to 1966.
We now come to the second part of the controverted order — the appointment of
the petitioner as co-administrator vice the respondent. Since the removal of Matias was
done with inordinate haste and without due process, aside from the fact that the
grounds upon which he was removed have no evidentiary justi cation, the same is void,
and, consequently, there is no vacancy to which the petitioner could be appointed.
Even granting arguendo that the removal of Matias is free from in rmity, this
Court is not prepared to sustain the validity of the appointment of the petitioner in
place of the former. To start with, the record does not disclose that any hearing was
conducted, much less that notices were sent to the other heirs and interested parties,
anent the petition for the appointment of Jose S. Matute, among others, as co-
administrator vice Matias S. Matute. In this regard, it is pertinent to observe that any
hearing conducted by the probate court was con ned solely to the primary prayers of
the separate petitions of Carlos S. Matute and the Candelario-Matute heirs seeking the
ouster of Matias S. Matute. The corollary prayers contained in the same petitions for
the appointment of Carlos S. Matute, Jose S. Matute and Agustina Matute Candelario or
anyone of them as co-administrator were never even considered at any of the hearings.
The requirement of a hearing and the noti cation to all the known heirs and other
interested parties as to the date thereof is essential to the validity of the proceeding for
the appointment of an administrator "in order that no person may be deprived of his
right or property without due process of law." (Eusebio vs. Valmores, 97 Phil. 163)
Moreover, a hearing is necessary in order to fully determine the suitability of the
applicant to the trust, by giving him the opportunity to prove his quali cations and
affording oppositors, if any, to contest the said application.
The provision of Rule 83 that if "there is no remaining executor or administrator,
administration may be granted to any suitable person," cannot be used to justify the
institution of Jose S. Matute even without a hearing, because such institution has no
factual basis considering that there was a general administrator (Carlos V. Matute) who
remained in charge of the affairs of the Matute estate after the removal of Matias S.
Matute. The abovecited provision evidently envisions a situation when after the removal
of the incumbent administrator no one is left to administer the estate, thus empowering
the probate court, as a matter of necessity, to name a temporary administrator (or
caretaker) pending the appointment of a new administrator after due hearing. Such
circumstance does not obtain in the case at bar.
Upon the foregoing disquisition, we hold that the respondent Court of Appeals
was without jurisdiction over CA-G.R. 37039-R, and that the controverted order of
January 31, 1966 is a nullity and must therefore be set aside in its entirety.
L-26085
L-26085 is a petition for certiorari with preliminary injunction interposed on May
19, 1966 by the same petitioner Jose S. Matute, praying that the controverted order of
default dated April 16, 1966, judgment by default dated April 23, 1966 and order of
execution dated May 3, 1966, all issued by the Court of First Instance of Davao, be set
aside.
The sequence of events, like in L-26751, commenced with the issuance by the
probate court (Court of First Instance of Manila) of the order of January 31, 1966
removing Matias S. Matute as co- administrator and replacing him with Jose S. Matute.
Armed with the letters of co-administration awarded to him on February 3, 1966, Jose
attempted to take possession of and exercise administration over the five haciendas
La Union, Sigaboy, Monserrat, Colatinan and Pundaguitan, all belonging to the Matute
estate and situated in Governor Generoso, Davao. Said ve haciendas were previously
assigned to the separate administration of the deposed co-administrator, Matias S.
Matute.
Mariano Nasser, herein plaintiff-respondent, who was in actual possession of the
said haciendas, opposed the projected takeover by the defendant-petitioner Jose S.
Matute on the ground that the said properties were leased to him as of February 10,
1965 by Matias S. Matute in the latter's capacity as co-administrator. Subsequently, on
February 15, 1966, Nasser instituted civil case 4968 in the Court of First Instance of
Davao, a complaint for injunction, alleging that the defendant-petitioner was forcibly
wresting possession of the said haciendas with the aid of hired goons, and praying that
the said defendant- petitioner be enjoined from taking physical possession,
management and administration of the aforesaid ve haciendas. On February 16, 1966
the court a quo issued a writ of preliminary injunction ex parte, prohibiting "Jose S.
Matute and/or his counsels, agents, representatives or employees from taking physical
possession, management and administration" of the abovementioned properties.
On February 23, 1966, seven days after he received on February 16, 1966, the
summons in civil case 4968, the defendant-petitioner moved to dismiss the aforesaid
complaint for injunction and to dissolve the ex parte writ of injunction. Said motion to
dismiss was predicated mainly on the contention that the court a quo did not have
jurisdiction over the subject haciendas considering that the same "are properties in
custodia legis under the jurisdiction of the Probate Court of Manila, in Sp. Proc. No.
25876 since 1955 up to the present time," and consequently the probate court has
exclusive jurisdiction over all cases, like the one at bar, involving possession and
administration of the aforesaid haciendas. In the same motion to dismiss, the
defendant-petitioner averred that the alleged contract of lease is simulated and
ctitious for which reason not even a copy of the said contract was attached to the
complaint, and that granting that such a contract was actually executed, the same is
invalid as it was never approved by the probate court. On February 28, 1966 the
defendant-petitioner was furnished a copy of the plaintiff- respondent's opposition to
the abovementioned motion to dismiss and to lift the ex parte writ of injunction.
Failing to receive any notice of a court resolution on his client's motion to
dismiss during the period of about 1- 1/2 months after the ling of the said motion, the
defendant-petitioner's counsel on April 11, 1966 wrote the clerk of court of the court a
quo, requesting that any resolution or order of the trial court be mailed to him by airmail
at his expense, instead of by surface mail, in order to minimize postal delay. Sometime
between April 11 and 19, 1966, the said counsel also dispatched an emissary to Davao
to inquire about the status of civil case 4968. After personal veri cation of the record,
the said emissary reported to the defendant-petitioner's counsel that the
abovementioned motion to dismiss had been denied by the court a quo in an order
dated March 31, 1966. It was also discovered from the record that the plaintiff-
respondent's counsel had been sent a copy of the order of denial on the very day it was
rendered (March 31, 1966) but the record was silent as to the mailing of the
corresponding copy for the defendant-petitioner's counsel, which copy until then had
not received by the latter. Forthwith, on April 19, 1966, although he had not yet been
furnished his copy of the said order of denial, defendant-petitioner's counsel interposed
the requisite answer with the counterclaim. Then on April 23, 1966 he led a
manifestation calling the attention of the court a quo that as of the said date he had not
received a copy of the order denying his client's motion to dismiss. It was only two
days later, or on April 25, 1966, that the said counsel claims, uncontroverted by the
respondent Judge and the plaintiff-respondent, that he received his copy of the
aforesaid order.
In a "Motion to Strike" dated April 26, 1966, the plaintiff- respondent urged that
the aforementioned answer with counterclaim be stricken from the record on the
grounds that on April 16, 1966 the court a quo had declared defendant-petitioner in
default for failure to answer the complaint in civil case 4928 and that subsequently, on
April 23, 1966 a judgment by default had been entered against the latter.
Immediately after receipt on May 5, 1966 of a copy of the said "Motion to Strike,"
the defendant-petitioner led his opposition, asserting that it was legally impossible to
declare him in default as of April 16, 1966 for failure to le his responsive pleadings,
considering that it was only received, through his counsel, a copy of the order denying
his motion to dismiss. On the same day, May 5, 1966, the defendant-petitioner's
counsel dispatched a rush telegram to the clerk of court of the Court of First Instance
of Davao inquiring whether the trial court had really rendered the order of default dated
April 16, 1966 and the subsequent judgment by default dated April 23, 1966, copies of
which had not been received by him. On the following day, May 6, 1966, the defendant-
petitioner led an "Urgent Motion to Investigate the O ce of the Clerk of Court for
Mailing Discrepancy."
The defendant-petitioner's counsel claims-and this is not controverted by the
respondent Judge and the plaintiff-respondent — that it was only May 17, 1966 that he
received a copy of the judgment by default and at the same time a copy of the order of
execution dated May 3, 1966, and that a copy of the order of default had never been
furnished him.
Because of the impending execution of the judgment by default with the
following dispositive portion —
"IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, judgment is hereby
rendered in favor of the plaintiff and against the defendant confirming the right of
the plaintiff to the possession of the premises leased in his favor by the judicial
administrator, Matias S. Matute and the injunction against the defendant issued
in this case is hereby declared permanent and defendant issued in this case is
hereby permanently enjoined from interfering in the peaceful possession of the
plaintiff over the haciendas La Union, Sigaboy, Monserat, Colatinan and
Pundaguitan of the estate of Amadeo Matute Olave, all situated in Governor
Generoso, Davao and from doing any act of taking any step against the peaceful
possession of said properties by the plaintiff. The defendant is likewise ordered to
pay the plaintiff the amount of P50,000.00 as attorney's fees due and payable to
plaintiff's counsel for ling this action; P2,400.00 a month beginning February,
1966, representing monthly salaries of security guards employed by the plaintiff
in the haciendas leased plus P7,000.00 representing transportation, hotel and
representation expenses incurred by the plaintiff for plaintiff's counsel and
another P700.00 representing the yearly premiums on the injunction bond led by
plaintiff,"
the defendant-petitioner interposed the instant petition for certiorari with preliminary
injunction to annul the order of default, the judgment by default, and the order of
execution, and to restrain the execution of the aforesaid judgment pending the
resolution of the instant petition.
On May 23, 1966 this Court granted the writ of preliminary injunction prayed for,
conditioned on the petitioner's posting a bond of P5,000, which he did on June 4, 1966.
We are of the consensus that the herein petition should be granted.
Rule 11, section 1 of the Revised Ruled of Court gives the defendant a period of
fteen (15) days after service of summons within which to le his answer and serve a
copy thereof upon the plaintiff, unless a different period is xed by the court. However,
within the period of time for pleading, the defendant is entitled to move for dismissal of
the action on any of the ground enumerated in Rule 16. If the motion to dismiss is
denied or if determination thereof is deferred, the movant shall file his answer within the
period prescribed by Rule 11, computed from the time he receives notice of the denial
or deferment, unless the court provides a different period (Rule 16, section 4). In other
words, the period for ling a responsive pleading commence to run all over again from
the time the defendant receives notice of the denial of his motion to dismiss. 6
Reverting to the case at bar, the defendant-petitioner was served with summons
in connection with civil case 4968 on February 16, 1966, hence he had until March 3,
1966 to le his responsive pleading. Instead of ling an answer, he seasonably
interposed a motion to dismiss on February 23, 1966. Although the aforesaid motion to
dismiss was denied as early as March 31, 1966, he received notice of the denial,
through his counsel of record, only on April 25, 1966, a fact not traversed by either the
respondent Judge or the plaintiff- respondent. Consequently, the defendant-petitioner
had fifteen (15) days from April 25, 1966, or up to May 10, 1966, to file his answer.
The delay in the mailing of a copy of the order of denial to the defendant-
petitioner's counsel was confirmed by the court a quo in a report rendered after an
investigation of the o ce of the clerk of court upon urgent motion of the defendant-
petitioner. The report reads in part:
"From its investigation of the employee in charge of Civil Cases, the Court
found out that, indeed, there was a delay in the mailing of the Order of this Court
dated March 31, 1966 to counsel for the defendant, Atty. Antonio Enrile Inton.
This Court, however, is convinced of the sincerity of the reasons given by the
employee concerned, and that is: that her failure to cause to be mailed the copy
intended for Atty. Antonio Enrile Inton on the same date that she caused to be
mailed the copy for Atty. Paterno Canlas (plaintiff- respondent's counsel) was
purely a case of an honest mistake and inadvertence on her part owing to the
volume of her work; the a davit of the employee in charge of Civil Cases being
hereto attached."
The a davit of the employee concerned mentioned in the above-quoted portion of the
report clearly admits the delay, thus:
"That due to the fact that I am the only one handling matters relative to
Civil Cases and, because of the volume of my work in the o ce, I must have
inadvertently misplaced the envelope containing a copy of the Order intended for
Atty. Antonio Enrile Inton, and only discovered by (my) mistake on April 14, 1966,
when I went over some papers contained in the drawer of my table;
"That upon discovery of the said envelope containing the copy of the order
dated march 31, 1966, among the papers in my table drawer, I forthwith sent the
same to the one in charge of mailing and who mailed the same on April 16, 1966,
by registered air mail special delivery, as evidenced by Registry Receipt No. 26897
now attached to the records of this case." (italics supplied)
It is unmistakable from the foregoing exposition that when the defendant-

petitioner was declared in default on April 16, 1966 the time for ling his answer had
not yet even commenced to run anew because on the said date his counsel had not yet
received notice of the denial of the motion to dismiss. The order of denial was received
only on April 25, 1966, or de nitely after April 16, 1966, the day when a copy of the said
order was mailed to the defendant-petitioner's counsel and when the defendant-
petitioner was declared in default.
No further elaboration is needed to show that the trial judge acted in excess of
jurisdiction when he declared the defendant- petitioner in default. Consequently, the
herein controverted order of default is a patently nullity, an in rmity which likewise
afflicts, necessarily, the subsequent judgment by default and the order of execution.
It is not amiss to say that, at the very least, the defendant- petitioner's motion to
dismiss should have been considered as an answer, since it raised issues on the merits
of the case, such as the invalidity of the alleged contract of lease. Consequently, the
defendant petitioner should have been noti ed of the hearing, and failure to give him an
opportunity to appear in the court below tainted the subsequent proceedings not only
with irregularity but also with illegality. It follows, therefore, that the petitioner was
incorrectly declared in default, and the holding of the trial of the case on the merits in
his absences, without due notice to him, was a denial of due process. 7
In opposing the instant petition, the plaintiff-respondent contends that the
remedy of the defendant-petitioner is not a petition for certiorari but an ordinary appeal
pursuant to Rule 41, section 2, paragraph 3 which reads:
"A party who has been declared in default may likewise appeal from the
judgment rendered against him as contrary to the evidence or to the law, even if
no petition for relief to set aside the order of default has been presented by him in
accordance with Rule 38."
We do not agree. The remedy provided for in the above-quoted rule is properly,
though not exclusively, available to a defendant who has been validly declared in
default. It does not preclude a defendant who has been illegally declared in default from
pursuing a more speedy and e cacious remedy, like a petition for certiorari to have the
judgment by default set aside as a nullity.
It should be emphasized that a defendant who is properly declared in default is
differently situated from own who is improvidently declared in default. The former
irreparably loses his right to participate in the trial, while the latter retains such right and
may exercise the same after having the order of default and the subsequent judgment
by default annulled and the case remanded to the court of origin. Moreover the former
is limited to the remedy set forth in section 2, paragraph 3 of Rule 41 by virtue of which
he can contest only the judgment by default on the designated ground that it is contrary
to the evidence or the law; the latter, however, has the option to avail of the same
remedy or to forthwith interpose a petition for certiorari seeking the nulli cation of the
order of default even before the promulgation of a judgment by default, or in the event
that the latter has been rendered, to have both court decrees - the order of default and
the judgment by default — declared void. The defendant-petitioner's choice of the latter
course of action is correct for he controverts the judgment by default not on the ground
that it is not supported by evidence or it is contrary to law, but on the ground that it is
intrinsically void for having been rendered pursuant to a patently invalid order of default.
Granting, however, that an appeal is open to the defendant- petitioner, the same
is not longer an adequate and speedy remedy considering that the court a quo had
already ordered the issuance of a writ of execution and the carrying out of such writ
loomed as great probability, This is in consonance with the doctrine enunciated in Vda.
de Saludes vs. Pajarillo and Bautista 8 wherein this Court held that an "appeal under
circumstances was not an adequate remedy there being an order of execution issued
by the municipal court." Hence, the rule that certiorari does not lie when there is an
appeal is relaxed where, as in the instant case, the trial court had already ordered the
issuance of a writ of execution. 9
The plaintiff-respondent also argues that the instant petition should be denied
for failure of the defendant-petitioner to move for a reconsideration of the challenged
decrees so as to afford the court a quo the chance to amend its errors. While as a
matter of policy a motion for reconsideration in the lower court has often been
considered a condition sine qua non for the granting of a writ of certiorari, this rule
does not apply "where the proceeding in which the error occurred is a patent nullity," 1 0
or where "the deprivation of petitioner's fundamental right to due process . . . taints the
proceedings against him in the court below not only with irregularity but with nullity," 1 1
or when special circumstances warrant immediate and more direct action. 1 2 The fact
that the defendant-petitioner had been deprived of due process, taken together with the
circumstance that a writ of execution had already been issued, perforce takes this case
outside of the purview of the rule requiring a previous motion for reconsideration.
The nullity of the challenged orders relieves the defendant- petitioner from paying
the damages assessed against him by the court a quo; however, it does not entitle him
to pursue further his claim of possession and administration over the abovementioned
ve haciendas, considering that we have declared in L-26751 that his appointment as
co-administrator is void.
In view of the foregoing disquisition, the controverted order of default, judgment
by default and order of execution should be annulled and set aside.
L-26106
L-26106 is another petition for certiorari with preliminary injunction instituted on
May 5, 1966 by Jose S. Matute (the same petitioner in L-26751 and L-26085) and his
brother Luis S. Matute,1 3 praying for the nulli cation of the following orders of the
Court of First Instance of Davao:
1. The order of February 15, 1966 dismissing with prejudice civil case
4252, a complaint led by Matias S. Matute in behalf of the Matute estate for the
annulment of a compromise agreement and for the reconveyance of certain
properties, in which case Jose and Luis Matute appeared as intervenor in alliance
with the plaintiff estate;
2. The order of March 29, 1966 declaring in default the intervenors in
civil case 4252 for failure to answer the defendant Paterno Canlas' counterclaim,
and adjudging them to jointly and severally pay the sum of P100,00 in damages
to the said Canlas; and
3. The order of April 12, 1966 directing the issuance of a writ of
execution against the intervenor to enforce the abovementioned judgment by
default.
The factual milieu follows:

On February 5, 1966 Matias S. Matute, in his capacity as co- administrator,
instituted in the name of the Matute estate civil case 4252 praying for, among other, (1)
the annulment of the compromise agreement dated November 26, 1962 entered into
between the co- administrator Julian V. Matute and Atty. Paterno R. Canlas, one of the
defendants-respondents herein, in full settlement of the latter's claim for attorney's
fees against the decedent Amadeo Matute Olave; (2) the nulli cation of the
compromise judgment of December 5, 1962 approving the aforesaid compromise
agreement; (3) the voiding of the deed of conveyance and assignment of rights dated
December 20, 1962 by virtue of which the said Julian Matute transferred to Canlas
several parcels of land belonging to the Matute estate pursuant to the compromise
judgment; (4) the annulment of the deed of conveyance covering the said parcels of
land executed on February 20, 1963 by Canlas in favor of Daniel Rivera, Sr., also one of
the defendants- respondents; (5) the nulli cation of the unregistered deeds of
mortgages, both dated July 19, 1963, over said properties executed by Rivera in favor
of Pablo del Rosario and Nicanor Vergara, also defendants-respondents herein; and (6)
the reconveyance of the said properties.
The aforesaid complaint was anchored on the grounds that (1) the compromise
agreement was entered into in fraud of the Matute estate; (2) Julian Matute, as a mere
co-administrator, had no authority to enter into the said compromise agreement
without the consent of the then general administrator, Don Celestino Alonzo; (3) the
compromise agreement was approved by the Court of First Instance of Manila (Branch
X) without notice to the heirs and the general administrator; and (4) the said agreement
had neither prior nor subsequent approval of the probate court which has custody of
the parcels of land involved in the said agreement.
The defendant-respondent Canlas subsequently interposed a motion to dismiss
dated February 24, 1964 predicated on the ground of res judicata, among others. Anent
the issue of res judicata, said motion to dismiss averred:
"The records of Civil Case No. 14208, entitled `Rosario Matute, et al. v.
Amadeo Matute Olave', Court of First Instance of Manila, Branch X, will show that
on December 5, 1962, the Honorable Judge Jose L. Moya, Presiding Judge of
Branch X, of the Court of First Instance of Manila, rendered a Compromise
Judgment . . . pursuant to a Compromise Agreement xxx entered into between
defendant Paterno R. Canlas and the Estate of Amadeo Matute Olave, duly
represented by the General Administrator of the Estate, the late Julian V. Matute
and his counsel of record in said Civil Case No. 14208, Atty. Marcelo Rafols Javier
involving the attorney's fees of defendant Paterno R. Canlas in said Civil Case No.
14208, secured with a charging lien on the properties involved herein. Pursuant to
said Compromise Judgment, the said Julian V. Matute, as General Administrator
of the Estate of his deceased father, Amadeo Matute Olave, transferred and
conveyed the properties involved herein which were ordered to be sold by the
Probate Court of Manila for only P144,000.00, in favor of defendant Paterno R.
Canlas as full payment of his attorney's fees in Civil Case No. 14208 in the
amount of P200,000.00 agreed upon in the Compromise Agreement. The said
Compromise Judgment of December 5, 1962 is immediately nal and not
appealable and has the effect and authority of Res Judicata in this case led by
co-administrator, Matias S. Matute, on behalf of the Estate, without authority of
his general administrator, Carlos V. Matute, who led a Motion to Dismiss the
complaint in this case.
xxx xxx xxx

"That the records of Civil Case No. 14208 will show that after the
Compromise Judgment was rendered on December 5, 1962, a Petition for Relief
to set aside the said Compromise Judgment was led by two (2) of the heirs and
full-blooded sisters of plaintiff co-administrator, Matias S. Matute, namely,
Rosario and Trinidad Suazo Matute on June 6, 1963, on grounds of (a) fraud and
(b) lack of the probate court's approval to the Compromise Agreement, the very
same grounds alleged in the present Complaint of plaintiff Estate, a copy of the
Petition for Relief is hereto attached as Annex `C' of this Motion to Dismiss. That
on June 13, 1963, herein defendant Paterno R. Canlas led his Opposition to
Petition for Relief, and, on June 26, 1963, a Supplementary Opposition to Petition
for Relief and refuting all the above issues raised in the Petition for Relief, copies
of which are hereto attached as Annexes `D' and `E'. Rosario and Trinidad Suazo
Matute led Reply and defendant Paterno R. Canlas led his Rejoinded on July 8,
1963 attaching therewith the letter-conformity to the Compromise Judgment of
co-administrator, Matias S. Matute, copies of which are hereto attached as
Annexes `F' and `F-1' of this Motion to Dismiss. That on July 13, 1963, Branch X
of the Court of First Instance of Manila, taking cognizance of Civil Case No.
14208, rightfully denied the Petition for Relief on all the grounds stated in our
Opposition to the Petition for Relief, Supplementary Opposition, etc., and
Rejoinder, a copy of which order is hereto attached as Annex `G' of this Motion to
Dismiss."
In other words, it is the basic contention of Canlas that both the compromise judgment
of December 5, 1962 rendered by the Court of First Instance of Manila (Branch X) 1 4
and the order of the same court dated July 13, 1963 denying the aforecited petition for
relief from judgment which sought the setting aside of the said compromise judgment,
bar by virtue of res judicata the prosecution of the abovementioned civil case 4252
which seeks anew the annulment of the said compromise judgment on practically the
same grounds invoked in the aforesaid petition for relief, which grounds were justi ably
denied by the competent court.
It appears that on the same day Canlas led his motion to dismiss, the general
administrator and heir, Carlos V. Matute, led his own motion to dismiss dated
February 15, 1964, stating among other things, that he had never authorized his co-
administrator, Matias Matute, to le civil case 4252 in the name of the estate and that
said complaint was led without legal authority and is prejudicial to the interests of the
estate as it would only entail unnecessary litigation expenses. He presented his written
conformity to the compromise judgment in his capacity as the succeeding general
administrator.
On February 27, 1964 the defendants-respondents Daniel Rivera, Sr., Pablo del
Rosario and Nicanor Vergara led their own joint motion to dismiss, alleging among
other things that they were innocent transferees and mortgagees for value of the
properties subject matter of the complaint and adopted as their own the motions to
dismiss led by Canlas and Carlos V. Matute. On April 11, 1964 the Honorable Judge
Vicente N. Cusi, Jr., executive judge of the Court of First Instance of Davao, issued an
order deferring to after the trial the nal hearing and determination of the motions to
dismiss since the grounds alleged therein "do not appear to be indubitable." From this
order, the defendants moved for a reconsideration which was denied on January 16,
1965.
Meanwhile, on August 17, 1964 Jose and Luis Matute led a motion to intervene,
asking that they be allowed to adopt the complaint of the plaintiff-estate. Said motion
was granted on September 5, 1964.
After the aforesaid rejection of the defendant's motion for reconsideration of the
order denying their separate motions to dismiss, Canlas led on February 15, 1965 his
answer ad cautelam, traversing the material allegations of the complaint in civil case
4252 and interposing the grounds stated in his motion to dismiss as a rmative
defenses. He also led a counterclaim for damages in the amount of P100,000 jointly
against Matias Matute, for ling the "frivolous and unfounded" action in the name of the
estate, and Jose and Luis Matute, for intervening in the case. All three were charged in
their personal capacities. On the same date, the other defendants, Rivera del Rosario
and Vergara, filed their own answer ad cautelam, denying the essential averments of the
complaint having relevance to them and adopting the a rmative defenses interposed
by Canlas. Said defendants similarly interposed a counterclaim of P50,000 for
damages, directed against the plaintiff-estate.
On March 1, 1965 Matias Matute, representing the plaintiff-estate, led the
corresponding answers to the foregoing counterclaims. The answer to Canlas'
counterclaim specifically denied.
"that the above-entitled case is patently frivolous and unfounded and was
instituted in bad faith and calculated to merely harass the defendant in order to
satisfy the personal revenge, hatred and vindictiveness of the co-administrator
Matias S. Matute, representing the plaintiff estate, and intervenors Jose S. Matute
and Luis S. Matute, the truth being that the complaint in the above-entitled case
was instituted precisely to prevent defendants from illegally and fraudulently
transforming and conveying themselves valuable properties of plaintiff estate
worth more that P500,000.00"
and disclaimed any

"knowledge of any actual, moral and consequential damage having been
suffered by defendant Paterno R. Canlas."
Meanwhile, upon motion of the counsels for the defendants, Judge Cusi ordered
on August 28, 1965 the reshu e of civil case 4252 in accordance with section 7, Rule
22 of the Rules of Court. Eventually, the case was transferred to the sala of Judge
Vicente P. Bullecer, the respondent judge herein.
On January 22, 1966 Canlas led a "Motion to Resolve: I Motion to Dismiss; II.
Supplementary and/or Second Motion to Dismiss." On February 3, 1966 Jose Matute
interposed an urgent ex parte motion for substitution as representative of the plaintiff-
estate in place of Matias Matute, citing the order of January 31, 1966 of the probate
court of Manila which appointed him as co-administrator in place of Matias Matute.
Subsequently, Matias Matute led in behalf of the plaintiff- estate a motion to
withdraw and/or dismiss with prejudice the complaint in civil case 4252, which, it will
be recalled, he himself instituted in the name of the Matute estate. The following
grounds were advanced to justify the said motion:
"That after a thorough study of the documents presented by the parties in
this case, the undersigned Judicial Administrator realized that he has expressly
rati ed and con rmed any and all contracts and compromise for attorney's fees
that his co-administrator Julian V. Matute has already entered into with the
defendant Atty. Paterno R. Canlas in his capacity as co-administrator of the said
testacy;
"That that causes of action of the above-entitled complaint against the

defendants were based and predicated from the compromise agreement entered
into between co-administrator Julian V. Matute and the defendant paterno R.
Canlas on December 2, 1962 and which compromise agreement was approved by
Judge Jose Moya, presiding Judge of Branch X of the Court of First Instance of
Manila, in Civil Case No. 14208 entitled Rosarion S. Matute, et al. vs. Amadeo
Matute Olave, etc., in the Compromise Judgment dated December 5, 1962."
On February 15, 1966 the respondent Judge dismissed with prejudice the
aforesaid complaint. The order of dismissal reads:
"The records show that this action was led by Matias S. Matute in his capacity
as co-administrator of the Estated of Amadeo matute Olave appointed in Sp. Proc. No.
25876, Probate Court of Manila, to annul a compromise judgment awarding attorney's
fees to defendant Atty. Paterno R. Canlas and rendered in Civil Case No. 14208, Court
of First Instance of Manila.
"Pending incidents in this case, are the motion to dismiss and
supplementary motion to dismiss on the ground of res judicata led by the
defendants and adopted by the General Administrator of the Estate, Carlos V.
Matute, and the heirs Maria Luisa Matute, Conchita V. Matute, Carlos S. Matute,
Ramos S. Matute, Eduarda S. Matute and Mrs. Cecilia Villanueva Matute.

"It appears now that the co-administrator Matias S. Matute who led this
action in the name of the Estate of Don Amadeo Matute Olave led a motion to
withdraw and/or dismiss dated January 8, 1966 and veri ed before the acting
Clerk of Court of Appeals stating that he is withdrawing the complaint he led in
this case and prays this Court to dismiss it with prejudice and further ratifying
and expressing conformity to the compromise judgment subject matter of the
complaint rendered in the Civil Case 14208, Court of First Instance of Manila.
"As prayed for in defendants' motion to dismiss and supplementary action

(motion) to dismiss, the action led in this case is hereby dismissed with
prejudice without cost to plaintiff." (italics supplied)
On March 12, 1966 the respondent Judge issued another order declaring that "all
the other incidents pending in this case are hereby terminated and closed." (Italics
supplied) Said order reads:
"Considering the order of this Court dated February 15, 1966 dismissing
this case with prejudice on the ground of res judicata in view of the nal order of
July 31, 1963 issued by the Court of First Instance of Manila, Branch X, in Civil
Case No. 14208, as alleged in the defendants' motion to dismiss and
supplementary motion to dismiss; and considering further that the co-
administrator Matias S. Matute who led the complaint in this case in the name
of the plaintiff Estate has withdrawn and/or prayed for the dismissal of this case
with prejudice, and considering furthermore, that the said Order of this Court of
February 15, 1966 is now xed and nal, all the other incidents pending in this
case are hereby terminated and closed."
However, on March 29, 1966 the respondent Judge promulgated an order

declaring in default both the intervenors and the plaintiff estate, the former for failure to
answer Canlas' counterclaim and the latter for failure to respond to the other
defendant's separate counterclaim. The same decree included a judgment by default
condemning the intervenors to jointly and severally pay the sum of P100,000 as
damages to Canlas and likewise sentencing the plaintiff estate to indemnify the other
defendants Rivera, del Rosario and Vergara in the sum of P50,000. Subsequently, on
April 12, 1966 the respondent Judge ordered the issuance of a writ of execution to
enforce the aforesaid judgment by default.
Hence, the interposition by the intervenors of the instant petition for certiorari
with preliminary injunction.
Anent the order of February 15, 1966 dismissing with prejudice civil case 4252,
intervenors-petitioners (now Jose Matute alone, as the other petitioner, Luis Matute,
has already withdrawn) contend that the said order is a nullity as it was predicated on a
void motion to dismiss and/or withdraw led by Matias Matute on February 14, 1966,
two weeks after the latter had been removed as co-administrator by the probate court
in an order dated January 31, 1966. It is further maintained that when Matias Matute
interposed the aforesaid motion to dismiss and/or to withdraw, he had no more
authority to represent the Matute estate as a consequence of his ouster as co-
administrator. The foregoing argument is irredeemably foreclosed by our explicit ruling
in L-26751 setting aside the above-mentioned order of January 31, 1966 and declaring
as void the removal of matias matute and the appointment of the herein intervenor-
petitioner Jose S. Matute as the new co- administrator. Granting, therefore, that the
controverted order of dismissal was rendered on account of Matias Matute's aforesaid
motion which was led in behalf of the plaintiff estate, the validity of such dismissal
order cannot be challenged on the ground that the movant (Matias Matute) lacked the
capacity to represent the plaintiff estate considering that his personality and authority
as co- administrator remained unimpaired because the order of January 31, 1966 is a
nullity.
However, the intervenor-petitioner is of the mistaken impression that the
disputed order of dismissal was based on Matias Matute's motion to dismiss and/or
to withdraw. As correctly pointed out by the defendants-respondents, the said order
was anchored on their own motion to dismiss and supplementary motion to dismiss.
Although both the motions of the co-administrator in representation of the plaintiff
estate and of the defendants, either of which could justify the dismissal of the
complaint in civil case 4252, were prominently mentioned in the body of the said
controverted order, the unequivocal import of the dispositive portion of said decree,
however, is that the dismissal was predicated on the defendants' motion to dismiss
and supplementary motion to dismiss, thus:
"As prayed for in defendants' motion to dismiss and supplementary action
to dismiss, the action led in this case is hereby dismissed with prejudice without
cost to plaintiff." (italics supplied)
Moreover, both the order of March 12, 1966 declaring the termination of all other
incidents in civil case 4252 and the order of April 11, 1966 denying the intervenors'
motion for reconsideration, categorically a rm that the disputed order of dismissal
was anchored on the defendants' motion to dismiss on the ground of res judicata. The
order of April 11, 1966 speci cally declares that the dismissal of civil case 4252 was
based.
". . . on the ground of res judicata invoked by the defendants in their Motion
to Dismiss and Supplementary Motion to Dismiss for the reason that the
Compromise Judgment rendered in Civil Case No. 14208, Court of First Instance
of Manila, sought to be annulled in this case, and the Order of July 31, 1963
denying the Petition for Relief in Civil Case No. 14208 and settling all the issues
raised in the Complaint, have both the force and effect of res judicata."
Undeniably, the aforesaid order of dismissal with prejudice adjudicated civil case
4252 upon the merits. Since there is no showing that the respondent Judge issued the
said order with grave abuse of discretion or without or in excess of jurisdiction, an
ordinary appeal, then, not a petition for certiorari, was the proper remedy available to
the intervenors Jose and Luis Matute who claim to be aggrieved by the dismissal. But
having failed to seasonably appeal from the aforesaid order of dismissal, the herein
intervenor- petitioner cannot avail of a petition for certiorari as a substitute remedy 1 5
to challenge the said order, which in the meantime had already become final.
The pretension of the intervenor-petitioner that his inability to appeal on time was
due to the failure of the court a quo to furnish him a copy of the order of dismissal is a
spurious, if not an utterly per dious, claim. To begin with, when the herein intervenor-
petition and his brother Luis led their motion to intervene on August 17, 1964, they
were not represented by counsel, but they failed to disclose their respective addresses
or at least the address of one of them, contrary to the requirement of section 5 of Rule
7 that a "party who is not represented by an attorney shall sign his pleadings and state
his address." (italics supplied) Consequently, if the pertinent orders and notices were
not sent to the intervenors, it was because of their failure to disclose their mailing
addresses. At all events, since the intervenors virtually allied with the plaintiff estate by
adopting in toto the latter's complaint without ling a separate complaint in
intervention, it is not without justi cation to rule, considering the particular
circumstances obtaining, that notice to the plaintiff estate should be deemed su cient
notice to the intervenors. Moreover, it is of record that both Attys. Wenceslao Laureta
and Robert Porter, who appeared on February 7, 1966 as counsels for the intervenor
Jose S. Matute in his capacity as alleged co-administrator by virtue of the abovecited
order of the probate court dated January 31, 1966, were duly furnished with copies of
all orders of the court a quo subsequent to their appearance. Anent the order of
dismissal dated February 15, 1966, the lower court reported, after an investigation of
the deputy clerk of court for alleged mailing discrepancies upon motion of the
intervenors, that copies of the said order were "each mailed to and received by Attys.
Wenceslao Laureta and Robert E. Porter on March 18 and 3, 1966, respectively, per
registry return cards duly attached to the records of this case." In other words, the
intervenor-petitioner Jose S. Matute was furnished, through counsel, a copy of the order
of dismissal at the earliest on March 3, 1966 when Atty. Porter received a copy of the
order. After a lapse of twenty-three (23) days from the receipt of the said copy, Attys.
Laureta and Porter led on March 26, 1966 a motion for reconsideration of the order of
dismissal. Hence, when the said motion was led, the intervenor-petitioner had still
seven (7) days to perfect an appeal. Subsequently, on April 11, 1966, the court a quo
denied the aforesaid motion for reconsideration. Separate copies of said denial were
received by Atty. Laureta on April 16, 1966 and by Atty. Porter on April 18, 1966,
respectively, as per registry receipts 25870 and 25872 and delivery No. 69785 and the
reply-telegram dated July 2, 1966 from the Bureau of Posts addressed to the
respondent Judge. From April 16, 1966, the intervenor-petitioner still had seven (7)
days or up to April 23, 1966 to perfect an appeal. However, it was only on April 25, 1966
that the requisite notice of appeal was led much later, on May 26, 1966, clearly way
beyond the reglementary period.
The intervenor-petitioner contends, however, that it was only on April 25, 1966
that he received notice of the dismissal of civil case 4252 and on the very same day he
caused the filing of the necessary notice of appeal and appeal bond. Conceding that the
foregoing assertion is correct, the intervenor-petitioner's projected appeal was still out
of time since the requisite record on appeal was led only on May 26, 1966, or thirty-
one days from April 25, 1966.
In passing, it is pertinent to note that the dismissal of the complaint in civil case
4252, after the issues were joined with the ling of the responsive pleadings, upon the
defendant's motion to resolve a pending motion to dismiss, the resolution of which had
been previously deferred until after the trial by virtue of an order of the same court
under another judge, is a procedural deviation from the standard sequence of trial in
accordance with which the court a quo, after the requisite answers were led, should
have proceeded with the trial on the merits, and only thereafter resolved the motion to
dismiss as was the import of the order of deferment. Nevertheless, it is relevant to
emphasize, on the other hand, that an order deferring the resolution of a motion to
dismiss, being an interlocutory order, may be altered or revoked by the trial court during
the pendency of the main action. It is settled that an "interlocutory order or decree
made in the progress of a case is always under the control of the court until the nal
decision of the suit, and may be modi ed or rescinded upon su cient grounds shown
at any time before nal judgment . . ." 1 6 Of similar import is the ruling of this Court
declaring that "it is rudimentary that such (interlocutory) orders are subject to change in
the discretion of the court. 1 7 Moreover, one of the inherent powers of the court is "To
amend and control its process and orders so as to make them conformable to law and
injustice." 1 8 In the language of Chief Justice Moran, paraphrasing the ruling in Veluz vs.
Justice of the Peace of Sariaya, 1 9 "since judges are human, susceptible to mistakes,
and are bound to administer justice in accordance with law, they are given the inherent
power of amending their orders or judgments so as to make them conformable to law
and justice, and they can do so before they lose their jurisdiction of the case, that is
before the time to appeal has expired and no appeal has been perfected." 2 0 And in the
abovecited Veluz case, this Court held that "If the trial court should discover or be
convinced that it had committed an error in its judgment, or had done an injustice,
before the same has become nal, it may, upon its own motion or upon a motion of the
parties, correct such error in order to do justice between the parties. . . . It would seem
to be the very height of absurdity to prohibit a trial judge from correcting an error,
mistake, or injustice which is called to his attention before he has lost control of his
judgment." Corollarily, it has also been held "that a judge of rst instance is not legally
prevented from revoking the interlocutory order of another judge in the very litigation
subsequently assigned to him for judicial action." 2 1
In view of the foregoing rulings, it is then enough to say that the abovementioned
order of deferment, issued by the Honorable Judge Vicente Cusi, Jr., to while sale civil
case 4252 was originally assigned, is interlocutory in nature, and as such, the court a
quo, through the now respondent Judge Vicente Bullecer, had the power to set i aside,
as it did by finally deciding the pending motion to dismiss on the ground of res judicata.
Moreover, as previously stated, there is no evidence to show of dismissal, acted with
grave abuse of discretion or without or in excess of jurisdiction.
We now come to the challenged order of default and judgment by default, both
contained in the abovementioned order dated March 29, 1966. Attacking the validity of
the said order of default, the intervenor-petitioner claims that the respondent Judge
failed to consider that Matias Matute, representing the plaintiff estate, led on time an
answer dated March 1, 1965, traversing the allegations of Canlas' counterclaim, which
answer inured to the bene t of not only Matias Matute but also to the intervenors who
were jointly impleaded as defendants in the said counterclaim. The defendant-
respondent Canlas, on the other hand, while not denying receipt of the aforesaid answer
to his counterclaim, contends that the herein intervenor-petitioner's failure to personally
answer said counterclaim is fatal and that he could not take refuge under the answer
interposed by Matias Matute.
We are of the considered opinion that the herein disputed order of default is
illegal and void, and, consequently, the controverted judgment by default and order of
execution were improvidently issued.
1. The counterclaim interposed by Canlas raised a common cause of action
for damages against Matias Matute, as the representative of the plaintiff estate, and
Jose and Luis Matute, as intervenors in civil case 4252, all in their personal capacities.
The counterclaim reads:
"That for instituting this patently frivolous and unfounded action in bad
faith calculated to merely harass answering defendant Paterno R. Canlas in order
to satisfy the personal revenge, hatred and vindictiveness of the co-administrator,
Matias S. Matute, representing the plaintiff Estate, and the intervenors Jose S.
Matute and Luis S. Matute, defendant Paterno R. Canlas suffered actual, moral
and consequential damages in the total amount of P100,00.00, for which plaintiff
Matias S. Matute and intervenors Jose S. Matute and Luis S. Matute should be
held personally liable." (italics supplied)
Having been thus jointly charged to pay the abovestated damages, the brothers Matias,
Jose and Luis Matute could validly le a common responsive pleading, as in effect they
did when Matias Matute led an answer to the aforesaid counterclaim, the receipt of
which Canlas admits. It is signi cant to note that the said answer does not only deny
the charge against Matias Matute but as well as negates the claim against the
intervenors.
2. Moreover, having successfully prayed for the resolution of his pending
motion to dismiss, even after the issues had been joined with the ling of his answer,
the defendant-respondent Canlas is deemed to have abandoned his counterclaim and
voluntarily reverted himself to the time when he initially interposed his motion to
dismiss prior to the ling of his answer with counterclaim. Thus, when the complaint in
civil case 4252 was dismissed on the basis of Canlas' motion, the entire proceeding
was inevitably terminated and there was nothing more to adjudge. In fact, the
termination of all the pending incidents in civil case 4252 was subsequently decreed by
the respondent Judge himself in the orders of March 12, 1966 and April 11, 1966.
Consequently, the respondent Judge, to say the least, acted in excess of jurisdiction
when he issued, after having dismissed the principal complaint, the herein controverted
order of default and judgment by default for then there was nothing left to be
adjudicated. Said decrees having been rendered in excess of jurisdiction, certiorari will
lie to have then annulled. In view of the foregoing discussion, the nality of the order of
dismissal should be upheld, while the disputed order of default, judgment by default
and order of execution should be declared void and set aside.
The motion interposed on June 14, 1966 by the herein intervenor- petitioner, in
his alleged capacity as co-administrator, in behalf of the Amadeo Matute Olave estate,
praying that the said estate be allowed to adopt the instant petition for certiorari with
preliminary injunction and be admitted as co-petitioner, the resolution of which we had
previously deferred, should therefore be denied on the ground that the intervenor-
petitioner has no legal personality to represent the Matute estate considering that his
appointment as co-administrator has been voided. Nevertheless, it is our considered
view that the declaration of total nullity of the abovementioned judgment by default
shall perforce bar the execution against the Matute estate of that portion of the said
void judgment which condemns it to pay the sum of P50,000 in damages to the
defendants-respondents Rivera, del Rosario and Vergara.
ACCORDINGLY, (1) in L-26751 the petition for certiorari is hereby granted; the
respondent Court of Appeals is adjudged as without jurisdiction over CA-G.R. 37039-R;
the probate court's controverted order of January 31, 1966 is hereby set aside in its
entirety, thereby maintaining the respondent Matias S. Matute in his trust as co-
administrator of the Amadeo Matute Olave estate; (2) in L-26085 the petition for
certiorari is hereby granted; the order of default dated April 16, 1966, the judgment by
default dated April 23, 1966, and the order of execution dated May 3, 1966, all issued in
excess of jurisdiction by the respondent Judge of the Court of First Instance of Davao,
are set aside; and (3) in L-26106 the petition for certiorari is hereby denied in so far as
it seeks to nullify the nal order of dismissal dated February 15, 1966; the order of
default and judgment by default dated March 29, 1966, all similarly issued in excess of
jurisdiction by the same respondent Judge are set aside. No pronouncement as to
costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Fernando,
Capistrano, Teehankee and Barredo, JJ., concur.

Footnotes
1. L-18799, March 31, 1964.
2. L-8039, January 28, 1957.
3. Degala vs. Ceniza and Umipig, 78 Phil. 791.

4. Borromeo vs. Borromeo, 97 Phil. 549.
5. Supra, see note 3.
6. Francisco, Revised Rules of Court (1965 ed.), Vol. 1, p. 703.
7. See Epang, vs. Ortin de Layco, 97 Phil. 24.
8. 78 Phil. 754.
9. See Woodcraft Works, Ltd. vs. Moscoso, et al., 92 Phil. 1021; Liwanag, et al. vs. Castillo,
106 Phil. 375.
10. Director of Lands vs. Santamaria and Javellana, 44 Phil. 594.
11. Luzon Surety Co. vs. Marbella, et al., L-16088, September 30, 1960.
12. Uy Chu vs. Imperial and Uy Du, 44 Phil. 27; Matutina vs. Buslon, et al., L-14637, August
24, 1960.
13. On November 10, 1967 this Court granted Luis Matute's petition to withdraw as
petitioner, without pronouncement on the facts alleged by him to justify said withdrawal.
14. The jurisdiction of the Court of First Instance of Manila (Branch X) over civil case
14208 anent Atty. Canlas' claim for attorney's fees secured by a charging alien, against
the pretended authority of the probate court, was upheld by this Court in Testamentaria
de Don Amadeo Matute Olave vs. Canlas, et al., (G.R. L-12709, February 28, 1962)
15. Lopez v. Alvendia, L-20697, December 24, 1964; Casilan, et al. vs. Hon. Filomeno B.
Ibañez, et al., L-19968-69, October 31, 1962; Francisco, et al. vs. Hon. Hermogenes
Calaug, et al., L-15365, December 26, 1961; Paringit vs. Hon. Honorato Masakayan, et al.,
L-16578, July 31, 1961; see also Ong Sit vs. Piccio, 79 Phil. 785; Gonzales vs. Salas, 49
Phil. 1.
16. Manila Electric Co. vs. Artiaga and Greene, 50 Phil. 144, citing Reilly vs. Perkins, 56 Pac.,
734.
17. Roxas vs. Zandueta, 57 Phil. 14; see also Gonzales vs. Gonzales, 81 Phil. 38.
18. Rule 135, section 5 (g)

19. 42 Phil. 557.
20. 6 Moran (1963 edition), p. 180.
21. Ong Su Han vs. Gutierrez David, 76 Phil. 546; see also Roxas vs. Zandueta, 57 Phil. 14;
Caluya vs. Ramos, 79 Phil 640.

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EN BANC

[G.R. No. L-26751. January 31, 1969.]

JOSE S. MATUTE , petitioner, vs. THE COURT OF APPEALS (Third

[G.R. No. L-26085. January 31, 1969.]

JOSE S. MATUTE , in his personal capacity and as Judicial Co-

[G.R. No. L-26106. January 31, 1969.]

JOSE S. MATUTE and LUIS S. MATUTE, as Intervenors in their

Antonio Enrile Inton for petitioner.

1. REMEDIAL LAW; SPECIAL PROCEEDINGS; JUDICIAL SETTLEMENT OF

Subsequently, Matias led a memorandum dated September 12, 1965 in support

2. The nancial statements of both administrators were not properly

4. Both administrators have made unauthorized disbursements as

5. The probate court has discretion to remove the administrator.

It appears that during the reception of evidence conducted on December 29,

"The Court of Appeals, in the decision appealed from, assumed jurisdiction

Like in the aforecited Maravilla case, the instant intrafraternal controversy

Verily, therefore, the scope of a co-administrator's trust encompasses the entire

(2) The evidence adduced by the movants is manifestly insu cient, if

(3) The evidence on record conclusively supports the ndings of the

It is unmistakable from the foregoing exposition that when the defendant-

The factual milieu follows:

xxx xxx xxx

and disclaimed any

"That that causes of action of the above-entitled complaint against the

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"As prayed for in defendants' motion to dismiss and supplementary action

However, on March 29, 1966 the respondent Judge promulgated an order

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3. Degala vs. Ceniza and Umipig, 78 Phil. 791.

18. Rule 135, section 5 (g)

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