RULE 2. CAUSE OF ACTION EVERY CIVIL ACTION MUST BE BASED ON A CAUSE OF ACTION What is a cause of action?

It is an act or omission by which a party violates a right of another. The cause of action must exist at the time of the filing of the claim and not merely anticipated. It must have already accrued at the time that you file your complaint. If there be defect, it cannot be cured by a supplemental pleading or complaint or whatsoever. REMEMBER: THE CAUSE OF ACTION MUST EXIST AT THE TIME OF THE FILING OF THE CLAIM.

The test would be: TO LOOK AT THE COMPLAINT AND DETERMINE WHETHER THE COMPLAINT IS SUFFICIENTLY WORDED THAT IT ALREADY STATES OR EXPRESSES A CLEAR CAUSE OF ACTION. When do you say that the complaint has actually articulated a proper Cause of Action? When/if the complaint is unanswered, the judge or the court can render judgment based on the complaint. If not, then the cause of action is incomplete. So, when one makes a complaint make sure you stipulate all the elements of a cause of action. In determining whether an initiatory pleading contains a cause of action, the test is admitting the truth of the facts alleged, can the court render a valid judgment in accordance with the prayer contained. If it does, then it states a cause of action. DISTINGUISH: CAUSE OF ACTION JURISDICTION OVER THE SUBJECT MATTER CAUSE OF ACTION AND

The essential elements are as follows: 1. A right in favor of the plaintiff by whatever means and under whatever law it arises or is created; 2. An obligation on the part of the defendant to respect or not to violate such right; 3. An act or omission on the part of such defendant in violation of the right of the plaintiff or constituting a breach of obligation of the defendant to the plaintiff for which the latter can maintain an action for In short, RIGHT, OBLIGATION AND VIOLATION BUT authors would opine that there is a 4th element that could not be followed in the jurisprudence that is DAMAGE. Why? Because of DAMNUM ASQUE INJURIA means loss or damage where there is no legal remedy. We may have been damaged but the law does not afford you the right to sue thereon then you cannot sue. o Example: 1. breach of a promise to marry GR: not actionable; 2. Gambling debts the law will leave you as you are because you are in pari delicto; 3. When the law is trifling

JURISDICTION OVER THE SUBJECT MATTER Both is determined solely by the allegations of the complaint. Therefore, must be existing at the time of the filing of the complaint. By definition: The act or The right, thing or contract omission by which a party under dispute. violates the right of another. The basis of every civil The basis of jurisdiction. action. Determines whether the court had taken cognizance of the case.

CASE: Rombe vs. AsiaTrust Development Bank, Feb. 13, 2008 The SC limited the application of the term cause of action to civil actions. Which means that if a case is not a civil action, i.e. a special proceeding - does it need to state a cause of action? SC: No! the term cause of action applies only to civil actions. What about subject matter? This applies to every type of action. It can be criminal, civil, or administrative.

Case: BPI Express Credit Card vs. CA, 296 Scra 260: SC: there is no concurrence of injury to the plaintiff and the legal responsibility by the person causing it. Without such concurrence, we have no cause of action. Its in the nature of damnum absque injuria. How to determine whether or not there is a cause of action?

Cause of action, therefore, is the why of litigation. Subject matter is the WHAT of an action in court. Cause of action in a civil action, its presence necessarily includes Subject matter. Whereas, in civil action, subject matter is included in the elements of a cause of action. So, to determine whether or not there is a valid cause of action look at the law, the contract and other sources of obligations. Whereas when you look at subject matter, reference is made based on law. Whether the law confers jurisdiction over this subject matter to the proper court. When a court takes cognizance of a cause of action, when none actually exists there is ERROR OF JUDGMENT. Whereas, when a court takes cognizance of a subject matter not within its jurisdiction there is ERROR OF JURISDICTION. If there is no subject matter, what is the ground for dismissal? That the court has no jurisdiction over the subject matter of the claim, under Rule 16, Sec. 1(b). Whereas, where a cause of action does not exist, the complaint is vulnerable to dismissal on the ground of LACK OF CAUSE OF ACTION OR FAILURE TO STATE A CAUSE OF ACTION, to be exact Rule 16, Sec. 1 (g) ===== more important distinction When a complaint is dismissed on the ground that a complaint fails to state a cause of action, can the action be re-filed? YES! The dismissal is no prejudice to the filing. But when the ground of dismissal is the court has no jurisdiction over the subject matter of the claim, it bas the refiling of the complaint before the same court because definitely that court would not have any jurisdiction. DISTINGUISH: CAUSE OF ACTION FROM RIGHT OF ACTION CAUSE OF ACTION RIGHT OF ACTION It is the act or omission Is the right to commence and by which a party violates maintain an action. the right of another. Is a remedial right. One may have a cause of action but may not have a Depends on substantive law right of action yet. whether the law gives you the right. Is a formal statement of the acts to give rise to the There is a right of action if the

remedial right.

same is allowed by remedial law. If there is no law provided, Is governed by the law on there can be no redress. procedure because you have to properly state Arises after performance of a your cause of action condition precedent. based on the procedure Ex. In administrative law allowed by the rules. Doctrine of Primary Jurisdiction: there is There is cause of action if commencement of an action in the same arises from a court, unless you give it to the substantive law. There is body which has primary a co-dependence. jurisdiction. - Barangay Conciliation Arises the moment a right is violated this is the condition precedent and the putative plaintiff is passive he waits when his right is violated. Not supposed to be affected by the Stature of Limitations. For as long as a right is violated, a cause of action exists. Is affected by Statute of Limitation. Therefore, a right of action can be lost.

Sec. 3. One suit for a single cause of action. A party may not institute more than one suit for a single cause of action. = a RULE AGAINST SPLITTING OF CAUSE OF ACTION SITUATION: A contracted a debt from B in the amount of P2M. A did not pay. B is hesitant to file a case. He wants to know whether he will win the case or not. So, what B did, upon the default of A, he divided the amount. Like, in a first case, claim for 200k, at least if he will lose, he will still have 1,800, 000.00 = this is splitting the cause of action = the law does not allow that! Because it is of the interest of the State that there be an end to litigation, this is a protected public policy. A single act, however, can lead to multiple violations or several injuries. Example: Action based on Quasi-delict: the act or omission is the failure of the defendant to exercise due diligence required by the circumstances. It may be through bodily injury on the part of the plaintiff incur hospitalization expenses, professional fees of doctors and a claim for other damages, ex. Loss of income or moral damages.

Can we prosecute this claims individually? NO because it is disallowed to be prosecuted individually. If there is only one delict, there is only one wrong. Therefore, there is only one cause of action. The rule is different if there are several causes of action that can be instituted = there can be filed separately but it does not mean that you cannot join them. JOINDER OF CAUSES OF ACTION section 5. Effect of splitting a single cause of action: the filing of one can be a ground for the dismissal of the other. = This means litis pendencia. Judgment upon the merits in any one, ground for the dismissal of the other = means res adjudicate. Corp. vs.

1. A contract embraces only one cause of action because it may be violated only once even if contains several stipulations. Ex. M borrowed money from K. in the loan, there is 1% interest. M did not pay. K cannot sue on the 1M alone as principal and sue independently the amount of the interest. This would tantamount to splitting of cause of action. There is only one violation. Only one contract. The provisions and stipulations are not separable. Therefore, you only file one action. Non-payment of a loan secured by a mortgage even constitutes a single cause of action. o The creditor cannot split up this single cause of action in two separate complaints. One for the payment of the debt and another for the foreclosure of the mortgage. If so, the filing of the second complaint will bar the filing of the second complaint. o The plaintiff cannot also file a complaint for some effects of a breach and another complaint for expense. Ex. Nabanggaan si A. he was hospitalized. He did go to work for 2 months. Thats loss of income. There can be no filing for a separate actions for loss of income and damage. There is only one defect or violation. Therefore, only one cause of action. Only one case can be filed. GR: ONE CONTRACT, ONE CAUSE OF ACTION OR VIOLATION EXCEPTION: WHEN A CONTRACT PROVIDES FOR SEVERAL STIPULATIONS TO BE PERFORMED AT DIFFERENT TIMES, THAT WOULD GIVE RISE TO AS MANY CAUSES OF ACTION AS THERE ARE VIOLATIONS. o o One violation, one cause of action Rule: one cannot sue on an anticipated default on the part of the defendant.

CASE: PRIVATE ENTERPRISE MAGALANG, JUNE 30, 2006:

SC: For a single cause of action or a violation of a right, the plaintiff may be entitled to a several reliefs. It is the filing of the separate complaint for the several reliefs that constitutes splitting of causes of action. This is what is prohibited by the rule. When there is only one delict or wrong but there is a single cause of action regardless of a number of rights violated belonging to one person. All such rights should be alleged in the said complaint, otherwise they are barred. To remember also: Example: You have several cause of action already accrued, they are related to one another. You only brought one. That is tantamount to splitting and the rest of the causes of action that you did not institute are considered barred. You are estopped from filing or prosecuting these causes of action. What about if you split your causes of action, can lead also to litis pendencia or res adjudicata. What if you joined? You are not sure if they can be joined. Anyway, they have all accrued. Naa bay mawala nimu? WALA! So it is better to join than to split. Whether there is a single cause of action or whether a cause of action is separate and distinct from another because if you file several causes of action but the others are premature, they will be dismissed. If you do not file based on a cause of action, it is possible that they be barred and the rest na wala nimu gi-file. It is very important to come up with rules to determine singleness of a cause of action.

EXCEPTION TO THE EXCEPTION: a. Stipulation and Repudiation Stipulation is when there is stipulation in the contract that when you fail to pay for one of the installments, the rest becomes due. This is called as an Acceleration Clause.

Repudiation is an unqualified and positive refusal to perform a contract though the performance thereof is not due. Made in the renunciation goes to the whole contract be treated a complete breach which will entitle the injured party bring this action at once. Meaning : in an installment mode of payment, when the debtor renounces to have borrowed or incurred debt. The creditor does not need to wait for the rest of the installment to arrive; the creditor may disregard the rest of the installment and sue for the entire amount in one case. This will be considered one cause of action. This is from the case of Blossom and Co. vs. Manila Gas, Nov. 8, 1930 Rule to Remember: all obligations which have matured at the time of the suit must be integrated as one cause of action in one complaint. Those not so included will be barred. Rule to Remember: Those not so included in the complaint for as long as they have already matured would be barred. Ex. M borrowed from K, 750k payable in installments. In January to June, she did not pay. In July, K instituted a claim for payments for the months of January to April. Ks claim for the months of May to June can no longer be filed as she is already barred to institute the same.

What is a joinder of causes of action? It is the uniting of two or more demands or rights of action in one action. The statement of more than one cause of action in a declaration of it is the union of two or more civil action each of which would be made the basis of a separate suit in the same complaint or declaration or petition. A plaintiff may under certain circumstances join several, distinct demands, controversies or rights of action in one complaint or petition. Is it absolutely required to join causes of action? Joinder of causes of action is permissive, not mandatory. It depends on the parties because, anyway, you are not splitting. It is splitting that is disallowed. One can actually file a separate cause of action because they are distinct. Requisites for Joinder of Causes of Action in one complaint: 1. It will not violate the Rules on Jurisdiction and joinder of parties; 2. The causes of action arise out of the same contract, transaction or relation between the parties or for demands of money or part of the same nature. So there must be a common actual antecedent among this causes of action. To apply: M obtains several loans from K. on Jan, 2011, 500k due on Dec 31 2013. In Jan, 2012, M borrowed again, 500k payable on the same date, Dec 2013. On Jan, 2013, another 500k was borrowed, also due Dec. 31, 2013. In short, M did not pay all of her obligations. How many causes of action? There are 3 separate causes of action. Can K file 3 separate cases? Yes. Can she file just one case? Yes because it is allowed under the permissive joinder of causes of action. But is K required to file just one complaint? No. Rule on joinder is permissive but not mandatory. The plaintiff has the option to apply the Rule. But unlimited joinder is not allowed. While the rule allows the plaintiff to join as many separate cases, there should nevertheless be some unity in the problem presented or a common question of law and fact subject to the restriction thereon regarding jurisdiction and joinder of parties. CASE: REPUBLIC VS. HERNANDEZ, FEBRUARY 9, 1996: Petition of Adoption and change of name in one petition.

SECTION 5. JOINDER OF CAUSES OF ACTION A party may in one action assert in the alternative or otherwise, as many causes of action as he may have against an opposing party subject to the following conditions: 1. The party joining the causes of action shall comply with the rules on joinder of parties found in Rule 3, Sec. 6; and 2. The joinder shall not include special civil actions or actions governed by special rules. - When there is conflict of jurisdiction in a subject matter = cannot be joined. o Where the causes of action are between the same parties but pertained to the different venue or jurisdictions, the joinder may be allowed in the RTC provided one of the cause of action falls within the jurisdiction of the said court and the venue lies within.

There can be no joinder of causes of action because the actions are under the special proceeding. TYPES OF JOINDER:

must be tried before the NLRC instead of joining the same in a complaint in the RTC in a related suit between the same employer and employee. The rule is this:

1. ALTERNATIVE JOINDER - Ex. X was riding the bus driven by Y. The bus collided with a jeepney operated by Z. X sustained injuries. Who do you sue? Can you instead file damages against Y or Z? that is what you call as an Alternative Joinder of causes of action. 2. CUMULATIVE JOINDER - They are related causes of action but it is best for these causes of action to be prosecuted under the same complaint. Ex. B sues Atty. E for recognition of an illegitimate child and support. This can be prosecuted in one case. Peyer vs. Martinez, Jan. 12, 1951 : application to announce the husband as an absentee with an to transfer the management of the conjugal assets to the wife. SC allowed this cumulative joinder Bris vs. Bris, September 20, 1922, GR NO. 18413 : an action for declaration of heirship with an action to recover the land subject of partition and distribution proceeding. Arent they unrelated? Did the SC allowed the cumulative joinder? If yes, what was the reason? Again, the parties joining the causes of action shall comply with the rule on joinder of parties. All persons in whom were against any right or relief with respect or arising out of a transaction or a series of transaction that are alleged to exists whether jointly, severally or in the alternative may except as otherwise provided in this rules, joined as one plaintiffs/defendants in one complaint where there is question of law or fact to such parties or to all such defendants as may arising therefrom. But the court may order as to prevent any plaintiff/defendant from being embarrassed or put to expense in connection with any proceedings and when may have more interest. --- long rule! Why should joinder of causes of action not include special proceedings of actions governed by special rules? To avoid confusion. They are peculiar to the latter. Another, to avoid jurisdictional issues like an action for illegal dismissal

1. Where the causes of action are between the same parties but pertained to the different venues or jurisdictions, the joinder may be allowed in the RTC provided one of the causes of action falls within its jurisdiction of the said court and the venue lies therein; Ex. An action for forcible entry = MTC but the action exceeded one year = accion reinvidicatoria, it is now before the RTC. To join the causes of action, file before the RTC because even though they pertain to different jurisdiction, it can be joined before the RTC because one of the cause of action falls within its jurisdiction. To simplify: Venue is the same Davao and Davao but the jurisdiction belongs to two different courts RTC and MTC =where to join? RTC. Venue is different Digos and Davao and jurisdiction is MTC Digos and RTC Davao = RTC of Davao, even if the venue is different. Two different RTCs, different venues RTC of Digos and RTC of Davao = either of the 2 RTCs. In effect, a legitimate forum-shopping. Same venue, Davao Davao, but belonging to 2 different MTCs = Joinder is not allowed in cases cognizable by the MTCs. Two separate cases must be filed.

a.

b.

c.

d.

Rule 31. Consolidation or Severance, READ!

G.R. No. 164479

February 13, 2008

ROMBE EXIMTRADE (PHILS.), INC. and SPOUSES ROMEO PERALTA and MARRIONETTE PERALTA,petitioners, vs. ASIATRUST DEVELOPMENT BANK, respondent. DECISION VELASCO, JR., J.: There is no interference by one co-equal court with another when the case filed in one involves corporate rehabilitation and suspension of extrajudicial foreclosure in the other. The Case Background Rombe Eximtrade (Phils.), Inc. (Rombe) is a corporation organized and existing under Philippine laws with its main office in the City of Mandaluyong. It is represented in this petition by the spouses Romeo and Marrionette Peralta. It owned some real properties in Malolos, Bulacan. Sometime in 2002, Rombe filed a Petition for the Declaration of a State of Suspension of Payments with Approval of Proposed Rehabilitation Plan docketed as Civil Case No. 325-M-2002 with the Malolos, Bulacan Regional Trial Court (RTC), Branch 7. On May 3, 2002, in accordance with Section 6, Rule 4 of the Interim Rules of Procedure on Corporate Rehabilitation (IRPCR), the RTC issued a Stay Order suspending the enforcement of all claims whether for money or otherwise judicial or extrajudicial against Rombe. The Securities and Exchange Commission and Rombes other creditors, the Bank of the Philippine Islands and creditorrespondent Asiatrust Development Bank (Asiatrust), opposed the petition. Thereafter, on September 24, 2002, the Malolos, Bulacan RTC, Branch 7 issued an Order dismissing Civil Case No. 325-M-2002, and the May 3, 2002 Stay Order suspending all the claims against Rombe was lifted. According to the trial court, Rombe misrepresented its true financial status in its petition for suspension of payments. It found that: (1) Rombe did not submit an audited financial statement as required by the IRPCR; (2) Rombe made it appear that it had sufficient assets to fully pay its outstanding obligations when it submitted copies of certificates of title over real properties, but when examined, these were registered in the names of other persons and only two were unencumbered; (3) Rombe misdeclared the value of its assets, violating the provisions of the IRPCR; (4) Rombe gave only general references to the location of its properties without mention of the book values nor condition of the properties in its Inventory of Assets; (5) Rombe did not attach any evidence of title or ownership to the properties enumerated in the Inventory of Assets contrary to the IRPCR; (6) Rombe did not attach nor provide a Schedule of Accounts Receivable indicating the amount of each receivable, from whom

due, the maturity date, and the degree of collectivity, as required by the IRPCR; (7) Rombe also had not been complying with its reportorial duty in filing its General Information Sheet from 1992 to 2002, nor its Financial Statement (FS) from 1992 to 1995 and 2001, while its FSs for 1999 and 2000 were filed late; (8) Rombes Balance Sheet claimed it had receivables but it did not indicate the nature, basis, and other information of the receivables; (9) Rombe grossly exaggerated assets claiming properties it did not own; and (10) Rombe did not have a feasible rehabilitation plan. 1The RTC concluded that Rombe made numerous material misrepresentations and was insolvent. Since Rombe did not appeal, Asiatrust initiated foreclosure proceedings against Rombes properties. On December 17, 2002, anticipating the foreclosure, Rombe filed a Complaint for Annulment of Documents and Damages with Prayer for a Temporary Restraining Order (TRO) and Injunction docketed as Civil Case No. 906-M-2002 and raffled to the Malolos, Bulacan RTC, Branch 15. In this case, Rombe asked that Asiatrust and the Ex-Officio Provincial Sheriff of Bulacan be stopped from proceeding with the extra-judicial foreclosure of mortgage on its properties initiated by Asiatrust. The RTC, Branch 15 issued the January 8, 2003 Order granting the writ of preliminary injunction in favor of Rombe. Asiatrusts Motion for Reconsideration with Motion to Dissolve Writ of Preliminary Injunction was rejected in the April 3, 2003 Order. Aggrieved, Asiatrust filed before the Court of Appeals (CA) a Petition for Certiorari under Rule 65 docketed as CA-G.R. SP No. 77471 with the CA, alleging grave abuse of discretion on the part of the RTC, Branch 15 in issuing the TRO. The Court of Appeals ruled Rombe misrepresented itself On March 29, 2004, the CA issued the Decision2 in favor of Asiatrust stating, as follows: IN VIEW OF ALL THE FOREGOING, finding merit in this Petition, the same is GRANTED and the assailed Orders dated January 8, 2003 and April 3, 2003 are hereby ANNULLED and SET ASIDE, for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. Costs against private respondents. SO ORDERED. The CA found that the May 3, 2002 Stay Order of the Malolos, Bulacan RTC, Branch 7 in Civil Case No. 325-M-2002 could not be clearer. The Stay Order was lifted by the trial court because of Rombes insolvency, misrepresentations, and infeasible rehabilitation plan. The appellate court observed that the January 8, 2003 Order of the RTC, Branch 15 granting the TRO in Civil Case No. 906-M-2002 interfered with and set aside the earlier September 24, 2002 Order of the RTC, Branch 7; and such intervention thwarted the foreclosure of Rombes assets. Rombes Motion for Reconsideration was denied on July 2, 2004.

Hence, this petition is filed with us. Rombe raises the following issues: (a) WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED WHEN IT ORDERED THE ANNULMENT OF THE ORDERS OF THE TRIAL COURT FOR THE ISSUANCE OF A WRIT OF PRELIMINARY INJUNCTION AGAINST HEREIN RESPONDENT DESPITE THE FACT THAT CIVIL CASE NO. 906-M-2002, A CASE FOR ANNULMENT OF DOCUMENTS FILED BEFORE BRANCH 15 OF THE REGIONAL TRIAL COURT OF MALOLOS, BULACAN, INVOLVES A TOTALLY SEPARATE AND DISTINCT CAUSE OF ACTION FROM THAT OF CIVIL CASE NO. 325-M-2002, A PETITION FOR DECLARATION OF STATE OF SUSPENSION OF PAYMENTS WITH APPROVAL OF PROPOSED REHABILITATION FILED BEFORE BRANCH 7 OF THE REGIONAL TRIAL COURT OF MALOLOS, BULACAN (b) WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED WHEN IT ORDERED THE ANNULMENT OF THE ORDERS OF THE TRIAL COURT FOR THE ISSUANCE OF A WRIT OF PRELIMINARY INJUNCTION AGAINST HEREIN RESPONDENT DESPITE THE FACT THAT THE PURPOSE OF THE RESTRAINING ORDER ISSUED BY BRANCH 15 REGIONAL TRIAL COURT OF MALOLOS, BULACAN IN CIVIL CASE NO. 906-M-2002 IS ENTIRELY SEPARATE AND DISTINCT FROM THE PURPOSE OF THE STAY ORDER ISSUED BY BRANCH 7 OF THE REGIONAL TRIAL COURT OF MALOLOS, BULACAN IN CIVIL CASE NO. 325-M-2002 (c) WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED WHEN IT ORDERED THE ANNULMENT OF THE ORDERS OF THE TRIAL COURT FOR THE ISSUANCE OF A WRIT OF PRELIMINARY INJUNCTION AGAINST HEREIN RESPONDENT DESPITE THE ABSENCE OF ANY FINDING OF GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION EXERCISED BY THE TRIAL COURT IN THE [ISSUANCE] OF THE SAID ORDERS (d) WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED WHEN IT DID NOT EVEN BOTHER TO ADDRESS THE FACT THAT THE PETITION FILED BEFORE IT IS FATALLY DEFECTIVE The Courts Ruling We shall first address what Rombe claims are fatal defects in Asiatrusts petition before the CA. According to Rombe, the signatory of the petition, Esmael C. Ferrer, Asiatrusts Manager and Head of the Acquired Assets Unit, was not authorized by

Asiatrusts Board of Directors to sign Asiatrusts petition and the CA, therefore, should have dismissed the petition outright. Citing Premium Marble Resources, Inc. v. Court of Appeals (Premium),3 Rombe avers that the power of a corporation to sue and be sued in any court is lodged with the board of directors and, absent any board resolution, no one can act on behalf of the corporation. Any action without this authorization cannot bind the corporation. Rombes reliance on Premium is misplaced. The issue in Premium is not the authority of the president of Premium to sign the verification and certification against forum shopping in the absence of a valid authority from the board of directors. The real issue in Premium is, who between the two sets of officers, both claiming to be the legal board of directors, had the authority to file the suit for and on behalf of the company. Premium is inapplicable to this case. On the matter of verification, the purpose of the verification requirement is to assure that the allegations in a petition were made in good faith or are true and correct, not merely speculative. The verification requirement is deemed substantially complied with when one who has ample knowledge to swear to the truth of the allegations in the petition signed the verification attached to it, and when matters alleged in the petition have been made in good faith or are true and correct.4 In this case, we find that the position, knowledge, and experience of Ferrer as Manager and Head of the Acquired Assets Unit of Asiatrust, and his good faith, are sufficient compliance with the verification and certification requirements. This is in line with our ruling in Iglesia ni Cristo v. Ponferrada,5 where we said that it is deemed substantial compliance when one with sufficient knowledge swears to the truth of the allegations in the complaint. However, to forestall any challenge to the authority of the signatory to the verification, the better procedure is to attach a copy of the board resolution of the corporation empowering its official to sign the petition on its behalf. Now, as to the core of the petition, Rombe vigorously asserts that the writ of preliminary injunction issued by Branch 15 does not affect in any way the earlier September 24, 2002 Order of Branch 7 since the two cases involve separate and distinct causes of action. Rombes thesis is correct but for a different reason. The rehabilitation case (Civil Case No. 325-M-2002) is distinct and dissimilar from the annulment of foreclosure case (Civil Case No. 906-M-2002), in that the first case is a special proceeding while the second is a civil action. A civil action is one by which a party sues another for the enforcement or protection of a right or the prevention or redress of a wrong.6 Strictly speaking, it is only in civil actions that one speaks of a cause of action. A cause of action is defined as the act or omission by which a party violates a right of another. 7 Thus, in the annulment of foreclosure case, the cause of action of Rombe is the act of Asiatrust in foreclosing the mortgage on Rombes

properties by which the latters right to the properties was allegedly violated. On the other hand, the rehabilitation case is treated as a special proceeding. Initially, there was a difference in opinion as to what is the nature of a petition for rehabilitation. The Court, on September 4, 2001, issued a Resolution in A.M. No. 00-8-10-SC to clarify the ambiguity, thus: On the other hand, a petition for rehabilitation, the procedure for which is provided in the Interim Rules of Procedure on Corporate Recovery, should be considered as a special proceeding. It is one that seeks to establish the status of a party or a particular fact. As provided in section 1, Rule 4 of the Interim Rules on Corporate Recovery, the status or fact sought to be established is the inability of the corporate debtor to pay its debts when they fall due so that a rehabilitation plan, containing the formula for the successful recovery of the corporation, may be approved in the end. It does not seek a relief from an injury caused by another party. Thus, a petition for rehabilitation need not state a cause of action and, hence, Rombes contention that the two cases have distinct causes of action is incorrect. Indeed, the two cases are different with respect to their nature, purpose, and the reliefs sought such that the injunctive writ issued in the annulment of foreclosure case did not interfere with the September 24, 2002 Order in the rehabilitation case. The rehabilitation case is a special proceeding which is summary and non-adversarial in nature. The annulment of foreclosure case is an ordinary civil action governed by the regular rules of procedure under the 1997 Rules of Civil Procedure. The purpose of the rehabilitation case and the reliefs prayed for by Rombe are the suspension of payments because it "foresees the impossibility of meeting its debts when they respectively fall due,"8 and the approval of its proposed rehabilitation plan. The objective and the reliefs sought by Rombe in the annulment of foreclosure case are, among others, to annul the unilateral increase in the interest rate and to cancel the auction of the mortgaged properties. Being dissimilar as to nature, purpose, and reliefs sought, the January 8, 2003 Order granting the injunctive writ in the annulment of foreclosure case, therefore, did not interfere with the September 24, 2002 Order dismissing the rehabilitation petition and lifting the May 3, 2002 Stay Order. More importantly, it cannot be argued that the RTC, Branch 15 intervened with the rehabilitation case before the RTC, Branch 7 when the former issued the January 8, 2003 injunctive writ since the rehabilitation petition was already dismissed on September 24, 2002, which eventually attained finality. After September 2002, there was no rehabilitation case pending before any court to speak of. Hence, the Malolos, Bulacan RTC, Branch 15 did not commit grave abuse of discretion in issuing the January 8, 2003 Order.

WHEREFORE, the petition is GRANTED. The CA Decision in CA-G.R. SP No. 77471, annulling and setting aside the January 8, 2003 and April 3, 2003 Orders of the Malolos Bulacan RTC, Branch 15, is hereby REVERSED andSET ASIDE. The Malolos, Bulacan RTC, Branch 15 is ordered to conduct further proceedings in Civil Case No. 906-M-2002 with dispatch.

G.R. No. 18413

September 20, 1922

GERTRUDIS BRIZ, plaintiff-appellee, vs. VIVENCIA BRIZ and her husband PEDRO REMIGIO, defendants-appellants. STREET, J.: This action was instituted in the Court of First Instance of the Province of Samar in behalf of a minor, one Gertrudis Briz, to recover of the defendants, Vivencia Briz and Pedro Remigio, the parcel of land described in the complaint. Upon the institution of the action, the trial court, in accordance with a request stated in the complaint, named Benita Elleso, mother of Gertrudis Briz, as her guardian ad litem, after which the cause proceeded with the usual incidents to a hearing; and judgment was rendered in favor of the plaintiff. From this decision the defendants appealed. The complaint alleges in substances that the plaintiff, a minor of 11 years, is a recognized natural daughter of Maximo Briz, deceased, from whom she inherited the parcel of land which is the subject of action. It is not disputed that said land belonged in life to Maximo Briz, who died in May, 1909, unmarried and intestate, leaving neither ascendants nor legitimate descendants. It appears, however, that he did leave surviving him other kindred, including at least an uncle, Geronimo Bello, and an aunt, Vivencia Briz, the latter of whom is one of the defendants in this case. It also appears that the defendants have had continuous possession of the disputed parcel of land since the death of Maximo Briz, and they claim that Vivencia Briz acquired it for a valuable consideration from Maximo Briz before his death. Though it is alleged in the complaint that Gertrudis Briz is the recognized natural daughter of Maximo Briz, it is not pretended that she has ever been voluntarily acknowledged as the natural child of her father in either of the ways specified in article 131 of the Civil Code; nor is it claimed that she has ever obtained a judicial decree, under article 135 or article 137 of the same Code, compelling her father or his heirs to recognized her as his natural child. The most that is claimed in her favor is that she has enjoyed the uninterrupted possession of the status of a natural child, as contemplated in subsection 2 of article 135. The trial judge found that the plaintiff is in fact the natural daughter of Maximo Briz and Benita Elleso, and that after the birth of the plaintiff until her father's death she had been in the uninterrupted possession of the status of natural child. His Honor further found that the claim to this parcel of land asserted in the answer of the defendants, to the effect that it has been acquired by purchase from Maximo Briz in life, is baseless; and in this connection is Honor held that the not written in Visayan at the food of the document Exhibit 1, purporting to a accredit the fact that the said Maximo Briz intended for his aunt Vivencia to have this land in consideration of P70 received by him from her, is not genuine. In view of these findings his Honor proceeded to declare, in the dispositive part of his opinion, that the plaintiff, Gertrudis Briz, is

entitled to be recognized as the natural daughter of Maximo Briz and that, in default of heirs with better right, she is his sole rightful heir; and he accordingly ordered the defendants to surrender possession of the land to her and to pay to her the sum of P36, which had been received by them as rent of the same from one Fortunato Aguirre. While, upon examining the proof presented in the court below, we see no sufficient reason to doubt the correctness of the conclusions of the trial judge upon the questions of fact, nevertheless, as the case must, for error of law, be remanded for further proceedings in which additional defendants may be brought before the court, we abstain from making a conclusive pronouncement upon the controverted question whether Gertrudis Briz has been in the uninterrupted possession of the status of natural child. Upon the other point, which is concerned exclusively with the special defense of the present defendants, namely, that Vivencia Briz acquired this parcel of land for a valuable consideration from Maximo Briz in life, we do not hesitate to say that the finding of the trial judge is in conformity wit the evidence. Upon the facts above stated a single question of law is presented which in our opinion determined the disposition of the case. That question is, whether it was permissible for the trial judge upon the actual state of the pleadings in this case and in the absence of other parties in interest, to make a judicial declaration to the effect that the minor plaintiff is entitled to be recognized as the natural daughter of Maximo Briz and upon that pronouncement to found a judgment in her favor, as heir, for the recovery of the land in question. This question must in our opinion be answered in the negative. In article 939 of the Civil Code it is declared that, in the absence of legitimate descendants or ascendants, the natural children legally acknowledged shall succeed to the entire estate of the decedent. The expression "legally acknowledged," as here used, can only be construed as referring to children who have, somehow or other, acquired the legal status of natural children; and this means that they must either have been voluntarily acknowledged, as contemplated in article in article 131 of the Civil Code, or they must have procured a decree compelling the natural parent or his heirs to recognize them as having the status of natural children, as contemplated in articles 135 and 137 of the Civil Code. From this it necessarily follows that the actual attainment of the status of a legally recognized natural child is a condition precedent to the realization of any rights which may pertain to such child in the character of heir. In the case before us, assuming that the plaintiff has been in the uninterrupted possession of the status of natural child, she is undoubtedly entitled to enforce legal recognition; but this does not in itself make her a legally recognized natural child. The provisions of law recognizing the right of a natural child to compel acknowledgment after the death of the alleged natural parent is found in article 137 of the Civil Code. That article is in form a law governing prescription, and it does not expressly

declare against whom the action to compel acknowledgment must be brought after the death of the putative parent. But of course the right of action is against the other legitimate heirs or the legitimate kin who would inherit as heirs in case the claim to recognition should not be made good. In the present case, there being now in existence no legitimate descendants or ascendants of Maximo Briz, his more remote kin, of whom Vivencia Briz is apparently one, would be entitled to inherit his property, in case the plaintiff is not recognized; and it is evident that all persons who might be prejudiced by the recognition of the minor plaintiff as a natural child of Maximo Briz are necessary and indispensable parties to any action to compel judicial recognition of her status as such. Reverting now to the complaint, it will be noted that it is in the form commonly used in a reivindicatory action for the recovery of land, and the plaintiff seeks to recover solely in her alleged character as heir of Maximo Briz. She does not ask for a decree compelling the defendants to recognize her as the natural child; and it is not alleged, and does not appear, that the defendant Vivencia Briz is the only person who, as a surviving relative of Maximo Briz, would be prejudiced by a declaration to the effect that the plaintiff is the recognized natural child of that persons. On the contrary it would seem that she is not. Under these circumstances the obstacles to the maintenance of the action in the present form are insuperable. The question whether a person in the position of the present plaintiff can in any event maintain a complex action to compel recognition as a natural child and at the same time to obtain ulterior relief in the character of heir, is one which in the opinion of this court must be answered in the affirmative, provided always that the conditions justifying the joinder of the two distinct causes of action are present in the particular case. In other words, there is no absolute necessity requiring that the action to compel acknowledgment should have been instituted and prosecuted to a successful conclusion prior to the action in which that same plaintiff seeks additional relief in the character of heir. Certainly, there is nothing so peculiar to the action to compel acknowledgment as to require that a rule should be here applied different from that generally applicable in other cases. For instance, if the plaintiff had in this action impleaded all of the persons who would be necessary parties defendant to an action to compel acknowledgment, and had asked for relief of that character, if would have been permissible for the court to make the judicial pronouncement declaring that the plaintiff is entitled to be recognized as the natural child of Maximo Briz, and at the same time to grant the additional relief sought in this case against the present defendants; that is, a decree compelling them to surrender to the plaintiff the parcel of land sued for and to pay her the damages awarded in the appealed decision. The conclusion above stated, though not heretofore explicity formulated by this court, is undoubtedly to some extent supported by our prior decisions. Thus, we have held in numerious cases, and the doctrine must be considered well settled, that a natural child

having a right to compel acknowledgment, but who has not been in fact legally acknowledged, may maintain partition proceedings for the division of the inheritance against his coheirs (Siguiong vs. Siguiong, 8 Phil., 5; Tiamson vs. Tiamson, 32 Phil., 62); and the same person may intervene in proceedings for the distribution of the estate of his deceased natural father, or mother (Capistrano vs. Fabella, 8 Phil., 135; Conde vs. Abaya, 13 Phil., 249; Ramirez vs. Gmur, 42 Phil., 855). In neither of these situations had it been thought necessary for the plaintiff to show a prior decree compelling acknowledgment. The obvious reason is that in partition suits and distribution proceedings the other persons who might take by inheritance are before the court; and the declaring of Heirship is appropriate to such proceedings. The foregoing discussion leads to the conclusion that the decision appealed from this erroneous and must be reversed. However, in view of the fact that the defects of the complaint may possibly be cured by amendment, it is considered appropriate, for the promotion of justice, that the cause should be remanded for further proceedings, with leave to the plaintiff to amend and bring in additional parties defendant, in far as may be necessary to a complete determination of the controversy. It will be so ordered, without express pronouncement as to costs of either instance. So ordered.

G.R. No. L-3500

January 12, 1951

ROBERT C. PEYER, petitioner, vs. FELIX MARTINEZ, Judge, Court of First Instance of Manila, TERESA FANLO PEYER, and HONGKONG AND SHANGHAI BANKING CORPORATION, respondents. TUASON, J.: This is a petition for certiorari and mandamus to review certain orders of the Court of First Instance of Manila in civil case No. 7769, and to command the respondent judge to reopen that case and allow petitioner's intervention therein. It appears that Teresa Fanlo Peyer is, or was, the wife of Robert C. Peyer, who left the Philippines on April 1, 1948 with one Grace Ryle allegedly to escape trial for concubinage with which he and Ryle were to be charged in the Court of First Instance of Manila. On March 30, 1949, Teresa Fanlo Peyer brought an action, docketed as case No. 7796, in the said court of first instance against the Hongkong and Shanghai Banking Corporation (1) to compel that Bank to cancel a real state mortgage executed in its favor by Robert C. Peyer over the conjugal house at 150 V. Mapa, Manila, and (2) upon payment of the outstanding mortgage debt in the sum of P15,000, to surrender to the plaintiff the Torrens certificate of title to that house, Manufacturer's Life Insurance policy No. 683258, and certain shares of stock or corporate securities, all of which admittedly are owned in common by the spouses. It was alleged that Robert C. Peyer formerly had an indebtedness of P120,000, more or less, by way of overdraft in current account with the defendant Bank; that as security for the payment of his indebtedness Robert C. Peyer executed a real estate mortgage in favor of the Bank on the conjugal home aforementioned and also pledged the said insurance policy and shares of stock or securities; that during the enemy occupation the payment of Peyer's debt was demanded by the Bank of Taiwan in its capacity as liquidator of the so-called enemy banks, and such payment was effected except the P15,000 which was left outstanding. It was explained that although the aforesaid house, insurance policy, and shares of stock or securities were conjugal assets, yet she was bringing the action as a feme sole (a) because the plaintiff had been living at said house separate and apart from her husband since June, 1945, for the reason that, as above stated, the latter had abandoned and deserted her in order to live with another woman not his wife, which led to the filing of a criminal complaint for concubinage him and Grace Ryle; (b) because Robert C. Peyer was a fugitive from justice having fled from the Philippines on April 1, 1948 together with Grace Ryle without any intention of returning in order to avoid trial and punishment for said crime; (c) because in thus leaving the Philippines Robert C. Peyer had rendered himself absolutely disqualified to discharge the duties incumbent upon him as manager of the conjugal properties and exposed these to lose and damage; (d) because in order to defraud and further prejudice the interest of the plaintiff in the community property, Robert C.

Peyer on September 12, 1946 changed the beneficiary of his various insurance policies, including the Manufacturer's Life Insurance policy, the premiums on which had been paid out of the conjugal funds, and substituted for the plaintiff as beneficiary, without her consent, the name of Lula G. Ryle; (e) because the plaintiff was without any means to support herself and her daughter, who had been placed under her legal custody, as Robert C. Peyer had failed to send her monthly allowances in violation of a court order in civil case No. 70172, an order which was affirmed by the Supreme Court in G. R. No. L-145, on September 7, 1946.1 The complaint was subsequently amended, with the court's approval previously had, so as to include a prayer for authority "to dispose of or sell said shares and/or securities and have the complete power of disposition over the conjugal house and Manufacturer's Life Insurance policy No. 683258." The defendant Bank made a motion for compulsory joinder of Robert C. Peyer as an indespensable party. That motion having been denied, the Bank filed an answer alleging that its only interest in this litigation was that it be paid whatever balance remained unpaid of the overdraft account of Robert C. Peyer, after deducting the payment alleged to have been made during the Japanese occupation to the Bank of Taiwan; that upon receipt of such balance it was ready and willing to execute a cancellation of the mortgage on the house at 150 V. Mapa and to hand over the insurance policy and the corporate securities it had received in pledge from Robert C. Peyer, to whoever the court might find lawfully entitled thereto. The court upon trial handed down a decision the dispository part of which is as follows: "For the foregoing, let a judgment issue requiring the defendant bank to execute a deed of cancellation of the real estate mortgage over the house at 150 V. Mapa, upon payment of the amount of P15,000, and thereafter to surrender to the plaintiff the corresponding title and to deliver to the same plaintiff the Manufacturer's Life Insurance Policy No. 683258 and the shares of stock and/or securities listed in Annex 'A'. "The plaintiff shall preserve and properly manage those properties, and she may dispose thereof for the purposes, and subject to the conditions set forth above. She may also lease the property on 150 V. Mapa St., Manila." This judgment was promulgated on July 12, 1949 and the Hongkong and Shanghai Banking Corporation did not appeal, but on August 11, the law firm of Gibbs, Gibbs, Chuidian and Quasha, as attorneys for Robert C. Peyer filed a motion to intervene, to reopen the case and to set aside the judgment. The last motion having been denied, the said attorneys instituted the instant proceedings, alleging that "the respondent Judge acted not only without or in excess of his jurisdiction, but also unlawfully excluded petitioner, without his presence, from the use and enjoyment of his managerial rights over the conjugal properties to which he is by law entitled."

Foremost among the questions raised is whether Robert C. Peyer is an indispensable or necessary party to the action. The answer to this question will largely decide the others. Consideration of collateral matters brought out in the annexes to the pleadings will be omitted from this decision except in so far as they may have some bearing on the issues herein formulated. Section 4 of Rule 3 provides: SEC. 4. Married woman. A married woman may not sue or be sued alone without joining her husband, except in the following instances: (a) When the action concerns her paraphernal property; (b) When the action is between herself and her husband; (c) When she is living separately and apart from her husband for just cause. Subparagraph (c) of this section fits into the facts of the present case. Not only are the plaintiff and her husband living apart but he has deserted and abandoned his wife and child. More than that, the suit, it is to be kept in mind, is not one against the husband but one, in the eyes of the law at least, to preserve the property in which he and the plaintiff have a common interest, and to use it to meet common responsibilities. From both viewpoints and from the very nature of the situation, the wife must necessarily sue alone to protect her natural right and manage the property during her husband's absence. The husband can not expect to be made a party when it is precisely from his inability to act and from the exigencies of the case that the wife derives her cause of action. To include him and require that he be served with process by publication or any other mode would, to a large measure, be a contradiction and defeat the law's purpose. Aside from specific rules of court, authorities are numerous and emphatic in the assertion of the legal capacity of the wife to sue without her husband under such circumstances as those in which the plaintiff here finds herself and the conjugal property. Grounded on public policy, on simple justice, and on the fundamentals of ownership, these authorities are of universal application, sound and good under all legal systems of civilized society. A few of them, selected at random, should suffice for illustration. In exceptional cases the wife may sue to recover community property. Law of Marital Rights, Speer, 3d Ed., sec. 510. One of these cases is when she has been abandoned and deserted by her husband. (Savage Oil Co., vs. Johnson et al., No. 3941, 141 S. W., 2d, p. 996.). Mr. Sanborn has abandoned his family and his homestead, and abjured the realm. He is in voluntary banishment and hiding, a confessed criminal, to avoid arrest and punishment for a great crime. A wife, under those circumstances, is regarded by the law as a feme sole for the purpose of suing and being sued. Story Eq. PI., sec. 71; 6 Am. and Eng. Enc. Law, 734; Clarke vs. Valentino, 41

Ga., 145; Love vs. Moynehan, 16 Ill., 278; Gregory vs. Pierce, 4 Metc. (Mass.), 478." (Sanborn vs. Sanborn, 62 N. W., 372.). A husband's right to sue alone for the recovery of community property is incidental to his statutory right to the exclusive management thereof based on the assumption that he will discharge his obligation as the head of the family, and not on any legal disability of the wife, so that when the husband leaves his wife, the reason for his control over community property ceases, and an action by the wife alone for damages for slander was not fundamentally defective that her petition would be disregarded and her suit treated as a nullity. . . . It was not essential to her right to sue alone that the husband should have expressly refused to bring a suit, as the jury might conclude that if she had not brought it, it would not have been brought, and that any damages recoverable would have been lost, and that she was dependent on her own resources or the generosity of her parents for support. (Davis vs. Davis, 186 S. W., 776.). While the right to manage and control the community estate is by the terms of the statute to continue with the husband during the existence of the marriage relations, still it must be necessarily meant to apply only in those cases where the husband by his presence and willingness to assume such duty and trust is in a position to properly discharge the same with justice to the wife. "The authorities are numerous to the effect that, where the husband has abandoned his wife and is no longer discharging the duties incumbent upon him as manager of the connubial partnership, the rights of the wife which have hitherto been passive immediately become active, and she herself may do things which ordinarily are intrusted by law to the husband as the head of the family. This arises out of necessity of the situation, based upon the inherent right of the wife herself to her own property and a share in the community, and out of the dereliction of the husband in the discharge of the statutory duties imposed upon him as agent of the community." Speer's Law of Marital Right, sec. 112, p. 154. See authorities there cited in note. (Webster vs. Isbell, 71 S. W., [2d], 346.) Article 1441 of the Civil Code, cited and relied upon by the petitioner, tends to uphold rather than detract from the validity of the challenged judgment. The article says: "Art. 1441. The management of the property belonging to the marriage shall transferred to the wife: 1. Whenever she may be the guardian of her husband in accordance with article 220; 2. When she institutes proceedings to have her husband adjudged an absentee, in accordance with articles 183 and 185; 3. In the case provided for by the first paragraph of article 1436. The courts shall also confer the management upon the wife, with such limitation as they may deem advisable, if the husband should be a fugitive from justice or should have been adjudged in default

in a criminal case, or, if, being absolutely disqualified for the administration, he should have taken no steps with respect thereto. These provisions refer to permanent transfer of management of the community property, and it is doubtful if they contemplate temporary administration such as that granted the wife by the respondent Judge. Supposing however that they are, by analogy, applicable, then the wife's cause is rendered the stronger by reason thereof; for the article permits the wife to assume the management, with the authority of a court of competent jurisdiction, when the husband is absent or otherwise unfit to discharge his duties as administrator. The plaintiff and the court below did just that. Counsel are probably right in contending that under the article in question, declaration of the husband's absence must precede the transfer of the management; i.e., it must be sought in a separate action in which the absent husband or his representative was given an opportunity to be heard. But if this be so, the requirement, eminently remedial or procedural in character, must be deemed superseded by the new Rules of Court. By section 4 of Rule 3, supra, applications to pronounce the husband an absentee and to place the management of the conjugal assets in the hands of the wife may, in our opinion, be combined and adjudicated in one and the same proceeding. We therefore concluded that Robert C. Peyer was not an indispensable or necessary party and that the court below properly proceeded in trying and deciding the case without him being joined. It likewise follows that the lower court did not err in disallowing his motion to intervene. Allowance of a motion to intervene rests in the sound discretion of the court where the proposed intervenor is not an indespensable party. In the exercise of that discretion, the court shall consider whether or not the intervention will unduly or prejudice the adjudication of the rights of the original parties and whether or not the intervenor's rights may be fully protected in a separate proceeding. (Sec. 3, Rule 13) In the light of this provision and of the circumstances of the case, and putting aside the fact that the judgment had become final when the husband's motion to intervene was registered, the court did not abuse its discretion. There was no possible injury to the husband's interest flowing from his omission for which he could not obtain redress in other ways; nor was there any valid objection to the proceeding which he could make. (The nature of his objection and what he intended to do are not disclosed.) As long as he stays away we can not see any substitute for the wife's management which he could offer. Upon the principles set out the decisions herein before quoted, nothing short of his physical presence in the country or his ready availability personally to administer the conjugal property should stop the wife from replacing him in the administration. It is only upon these conditions that he can keep the management under the Civil Code. Managing the conjugal property by remote control over the opposition of his wife who has an equal share in the property would not do. (See Davis vs. Davis, supra, and Webster vs. Isbell, supra.)

The husband's management of the conjugal estate is not a natural right like his right to do as he pleases with his private affairs. It is a mere privilege or preference given him by law on the assumption that he is better able to handle the administration. It results that when his supposed superiority over the woman in this regard; when indeed, as in this case, his ability as manager totally disappears, the raison d' etre of the privilege vanishes, and it is only just and proper that his co-partner should take control. Upon the facts of this case, the petitioner should be content with instituting, if he so desires, an independent action to liquidate the partnership or contest the right of his wife to take over its management. Not being a party to his wife's action he is not barred from pursuing this course. If such procedure would, as he claims, entail delay, he can afford to wait better than his wife and his child. After all, he himself has created the emergency and is estopped from complaining against its consequences. While, as a general proposition, multiplicity of suits is abhorrent, this is one case which should operate as an exemption to the rule. The case demands prompt and resolute action to cope with an existing emergency to enable the plaintiff to tide over her plight, to meet her and her child's necessities, and to meet conjugal obligations long overdue. As Mr. Chief Justice Cardozo of the New York Court of Appeals, later Associate Justice of the United States Supreme Court, has said, "The law does not stand uponpunctilible if there is a starving wife at home." It is interesting to note, apropos of this topic, that the husband time and opportunity at the start of the suit to come into the case and do whatever he now proposes to do. Notwithstanding the plaintiff's objection to his joinder suggested by the Hongkong and Shanghai Banking Corporation, Attorneys Ross, Selph, Carrascoso and Janda, who were or had been his lawyers, were notified by the counsel of the defendant of the pending suit. We find no denial that the notification was relayed to the plaintiff which in the ordinary course of professional dealings the said attorneys are presumed to have done. Before closing, it is worth repeating and re-emphasizing that under the terms of the judgment complained of, the administration conferred upon the wife is temporary; that said administration is open to the defendant to reclaim and resume if and when he comes forward and puts himself in a position to attend to it in the manner and form provided by law, and that in the last analysis the wife is authorized by the judgment to do no more than what the defendant himself would be compelled to do if he were the administrator. Upon the foregoing considerations, the petition for certiorari and mandamus is dismissed, with costs against the petitioner.