G.R. No. 109068 January 10, 1994
GAUDENCIO GUERRERO, petitioner, vs. REGIONAL TRIAL COURT OF ILOCOS NORTE, BR. XVI, JUDGE LUIS B. BELLO, JR., PRESIDING, and PEDRO G. HERNANDO, respondents.
FACTS
Filed by petitioner as an accion publicana against private respondent, this case assumed another dimension when it was dismissed by respondent Judge on the ground that the parties being brother-in-law the complaint should have alleged that earnest efforts were first exerted towards a compromise.
ISSUES:
(a) whether brothers by affinity are considered members of the same family contemplated in Art. 217, par. (4), and Art. 222 of the New Civil Code, as well as under Sec. 1, par. (j), Rule 16, of the Rules of Court requiring earnest efforts towards a compromise before a suit between them may be instituted and maintained; and,
(b) whether the absence of an allegation in the complaint that earnest efforts towards a compromise were exerted, which efforts failed, is a ground for dismissal for lack of jurisdiction.
RULING:
a. No. the enumeration of "brothers and sisters" as members of the same family does not comprehend "sisters-in- law". In that case, then Chief Justice Concepcion emphasized that "sisters-in-law" (hence, also "brothers- in-law") are not listed under Art. 217 of the New Civil Code as members of the same family. Consequently, the court a quo erred in ruling that petitioner Guerrero, being a brother-in-law of private respondent Hernando, was required to exert earnest efforts towards a compromise before filing the present suit.
b. No. the attempt to compromise as well as the inability to succeed is a condition precedent to the filing of a suit between members of the same family, the absence of such allegation in the complaint being assailable at any stage of the proceeding, even on appeal, for lack of cause of action.
It is not therefore correct, as petitioner contends, that private respondent may be deemed to have waived the aforesaid defect in failing to move or dismiss or raise the same in the Answer. On the other hand, we cannot sustain the proposition of private respondent that the case was, after all, also dismissed pursuant to
Sec. 3, Rule 17, of the Rules of Court 11 for failure of petitioner to comply with the court's order to amend his complaint.
A review of the assailed orders does not show any directive which Guerrero supposedly defied.
GAUDENCIO GUERRERO, petitioner, vs. REGIONAL TRIAL COURT OF ILOCOS NORTE, BR. XVI, JUDGE LUIS B. BELLO, JR., PRESIDING, and PEDRO G. HERNANDO, respondents.
FACTS
Filed by petitioner as an accion publicana against private respondent, this case assumed another dimension when it was dismissed by respondent Judge on the ground that the parties being brother-in-law the complaint should have alleged that earnest efforts were first exerted towards a compromise.
ISSUES:
(a) whether brothers by affinity are considered members of the same family contemplated in Art. 217, par. (4), and Art. 222 of the New Civil Code, as well as under Sec. 1, par. (j), Rule 16, of the Rules of Court requiring earnest efforts towards a compromise before a suit between them may be instituted and maintained; and,
(b) whether the absence of an allegation in the complaint that earnest efforts towards a compromise were exerted, which efforts failed, is a ground for dismissal for lack of jurisdiction.
RULING:
a. No. the enumeration of "brothers and sisters" as members of the same family does not comprehend "sisters-in- law". In that case, then Chief Justice Concepcion emphasized that "sisters-in-law" (hence, also "brothers- in-law") are not listed under Art. 217 of the New Civil Code as members of the same family. Consequently, the court a quo erred in ruling that petitioner Guerrero, being a brother-in-law of private respondent Hernando, was required to exert earnest efforts towards a compromise before filing the present suit.
b. No. the attempt to compromise as well as the inability to succeed is a condition precedent to the filing of a suit between members of the same family, the absence of such allegation in the complaint being assailable at any stage of the proceeding, even on appeal, for lack of cause of action.
It is not therefore correct, as petitioner contends, that private respondent may be deemed to have waived the aforesaid defect in failing to move or dismiss or raise the same in the Answer. On the other hand, we cannot sustain the proposition of private respondent that the case was, after all, also dismissed pursuant to
Sec. 3, Rule 17, of the Rules of Court 11 for failure of petitioner to comply with the court's order to amend his complaint.
A review of the assailed orders does not show any directive which Guerrero supposedly defied.
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