Death of a party - a complaint for recovery of possession of real property is an action which survives the death of a party.

"Xxx.

Petitioners assert that the trial court failed to comply with the clear language of Section 17, Rule 3 of the old Rules of Court which provides as follows:

"Death of a party. After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased, within a period of thirty (30) days, or within such time as may be granted. If the legal representative fails to appear within said time, the court may order the opposing party to procure the appointment of a legal representative of the deceased within a time to be specified by the court, and the representative shall immediately appear for and on behalf of the interest of the deceased. The court charges involved in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint guardian ad litem for the minor heirs."16

Petitioners allege that, as there was no appointed administrator for the estate of the deceased defendant, the trial court should have ordered the heirs to appear personally before it and manifest whether they were willing to substitute Glicerio. Petitioners further aver that if none of the heirs appeared or manifested to act as substitutes, the trial court should have ordered the adverse party to procure the appointment of a legal representative of the deceased who should appear for and on behalf of the deceased's interest.

Petitioners also harp on their failure to receive a copy of the Spouses Mariano's motion for substitution of Glicerio as well as the Order of the trial court admitting the motion. Petitioners argue that, even if they received a copy of the Order, the same did not grant the Spouses Mariano's motion for substitution. Since they were not aware of the purported substitution because of the lack of service on them of the motion and the Order, petitioners insist that the entire proceedings in the trial court were void for lack of jurisdiction over their persons.

It must be pointed out that, contrary to the Spouses Mariano's view, their complaint for recovery of possession of real property is an action which survives the death of a party.17 Such being the case, the rule on substitution of a deceased party is clearly applicable.

Under the express terms of Section 17 of the old Rules, in case of the death of a party and due notice is given to the trial court, it is the duty of the court to order the deceased's legal representative or heir to appear for the deceased.18 Otherwise, "the trial held by the court without appearance of the deceased's legal representative or substitution of heirs and the judgment rendered after trial, are null and void."19

Non-compliance with the rule on substitution of a deceased party renders the proceedings and judgment of the trial court infirm because the court acquired no jurisdiction over the persons of the legal representatives or of the heirs on whom the trial and the judgment would be binding. In other words, a party's right to due process is at stake, as we enunciated in Vda. de Salazar v. Court of Appeals,20 thus —

"We should not lose sight of the principle underlying the general rule that formal substitution of heirs must be effectuated for them to be bound by a subsequent judgment. Such had been the general rule established not because the rule on substitution of heirs and that on appointment of a legal representative are jurisdictional requirements per se but because non-compliance therewith results in the undeniable violation of the right to due process of those who, though not duly notified of the proceedings, are substantially affected by the decision rendered therein." (Emphasis supplied.)

In the instant case, it is true that the trial court, after receiving a notice of Glicerio's death, failed to order the appearance of his legal representative or heirs. Instead, the trial court issued an Order merely admitting respondents' motion for substitution. There was no court order for Glicerio's legal representative to appear, nor did any such legal representative ever appear in court to be substituted for Glicerio. Neither did the respondents ever procure the appointment of such legal representative, nor did Glicerio's heirs ever ask to be substituted for Glicerio. Clearly, the trial court failed to observe the proper procedure in substituting Glicerio. As a result, contrary to the Court of Appeals' decision, no valid substitution transpired in the present case.21

Thus, we rule that the proceedings and judgment of the trial court are void as to Felicidad, Glicerio, Jr., Bener and Julito. There is no iota of proof that they were apprised of the litigation against Glicerio. There is no indication that they authorized Atty. Pardalis to represent them or any showing that they appeared in the proceedings. Given these facts, the trial court clearly did not acquire jurisdiction over their persons. Such being the case, these heirs cannot be bound by the judgment of the trial court, as we have pronounced in Ferreria, et al. v. Vda. de Gonzales, et al.,22 thus —

"Inasmuch as Manolita Gonzales was never validly served a copy of the order granting the substitution and that furthermore, a valid substitution was never effected, consequently, the court never acquired jurisdiction over Manolita Gonzales for the purpose of making her a party to the case and making the decision binding upon her, either personally or as legal representative of the estate of her mother Manuela."

However, despite the trial court's failure to adhere to the rule on substitution of a deceased party, its judgment remains valid and binding on the following heirs, namely, Salvador, Concepcion and Ernesto. Formal substitution of heirs is not necessary when the heirs themselves voluntarily appeared, shared in the case and presented evidence in defense of deceased defendant.23 This is precisely because, despite the court's non-compliance with the rule on substitution, the heirs' right to due process was obviously not impaired.24 In other words, the purpose of the rule on substitution of a deceased party was already achieved. The following facts indicate plainly that there was active participation of these heirs in the defense of Glicerio after his death.

First, Salvador and Concepcion were among the original defendants in the case. Needless to state, the trial court, even before Glicerio's death, already acquired jurisdiction over the persons of these heirs. Hence, the rule on substitution of a deceased party is no longer required as to Salvador and Concepcion because they were already impleaded as defendants. In fact, Salvador, a lawyer son of Glicerio, was also one of the counsels for defendants.

Second, the lengthy testimonies of Salvador, Concepcion and Ernesto show that they defended their deceased father. Both Concepcion and Salvador testified in defense not only of themselves but also of their deceased father. As to Ernesto, while he was dropped as a defendant, he testified and admitted that he was one of the substitutes of Glicerio, thus —

"INTERPRETER: Please state your name and other personal circumstances.

WITNESS: ERNESTO BRIOSO, 45 years old, widower, farmer and residing at Puro-Batia, Libmanan, Camarines Sur.

INTERPRETER: Your witness is now ready.

ATTY. PARDALIS: With the permission of the Honorable Court.

COURT: Proceed.

Q: Are you one of the defendants in this case who was substituted for the late Glicerio R. Brioso?

A: Yes sir.

xxx xxx xxx"25

This shows that Ernesto understood that he was a substitute defendant in the case.

Third, Atty. Pardalis continued to represent Glicerio even after the latter's demise. Acting on Glicerio's behalf, Atty. Pardalis presented the testimonies of Salvador, Concepcion and Ernesto, to prove, among others, that Glicerio no longer had any interest in the Properties. These pieces of evidence clearly negate petitioners' contention that Atty. Pardalis ceased to be Glicerio's counsel upon the latter's death.

Assuming that Atty. Pardalis no longer represented Glicerio after his death, he remained as counsel for Salvador, Concepcion and Marcos. He should have questioned immediately the validity of the proceedings absent any formal substitution of Glicerio. Yet, despite the court's alleged lack of jurisdiction over the persons of his clients, Atty. Pardalis never bothered to challenge the same, not until after the trial court rendered its adverse decision.

Lastly, Atty. Pardalis received a copy of respondents' motion for substitution and the trial court's Order admitting the motion. Upon receipt of the motion and the Order, Atty. Pardalis should have immediately opposed the same for failure to comply with the rule on substitution. However, Atty. Pardalis did not question the motion and the Order, not until after the trial court rendered its decision. His long silence, which certainly binds his clients, can be construed as defendants' submission to the court's jurisdiction. The acquiescence of defendants and their counsel on the trial court's jurisdiction effectively precluded them from questioning the proceedings in the trial court.

In Ferreria et al. v. Vda. de Gonzales, et al.,26 Manolita Gonzales (one of the heirs of deceased defendant) was not served notice and, more importantly, never appeared in court, unlike Salvador, Concepcion and Ernesto who appeared and even testified regarding their father's interest in the Properties. In sum, with the active participation of Salvador, Concepcion and Ernesto, the trial court acquired jurisdiction over their persons. Accordingly, the proceedings and the decision of the trial court are valid with respect to these heirs.

As regards Marcos Nolasco, he was impleaded as a defendant primarily because he and Concepcion were among the actual possessors of the Properties. It was even defendants' contention that the complaint was defective for failure to implead Marcos as he was an indispensable party.27 Accordingly, the Spouses Mariano impleaded Marcos as a defendant, without whom no final determination can be had of the action.28 With Marcos' inclusion as a party, it is beyond dispute that the trial court acquired jurisdiction over his person. Therefore, the proceedings and judgment of the trial court are valid and binding upon Marcos.

Xxx."

GLICERIO R. BRIOSO, substituted by FELICIDAD Z. BRIOSO, BENER Z. BRIOSO, JULITO Z. BRIOSO, GLICERIO Z. BRIOSO, JR., and ERNESTO Z. BRIOSO, CONCEPCION B. NOLASCO, MARCOS NOLASCO and SALVADOR Z. BRIOSO, petitioners, vs. SALVADORA RILI-MARIANO and LEONARDO C. MARIANO, Respondents. G.R. No. 132765, January 31, 2003.