Local and transitory actions

What is a local action?

A local action is one founded on privity of estates only and there is no privity of contracts. A real action is a local action, its venue depends upon the location of the property involved in litigation. ―Actions affecting title to or possession of real property, or interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof is situated (Sec. 1, Rule 4).

That is an action brought in the place where all the subject property or part thereof are located in the absence of the agreement to the contrary. (Example is to recover real property)

What is a transitory action?

It is an action which depends on where the party resides and regardless of where the cause of action arose.

It is one founded on privity of contracts between the parties. A personal action is transitory, its venue depends upon the residence of the plaintiff or the defendant at the option of the plaintiff. A personal action ―may be commenced and tried where the plaintiff or any of the principal plaintiffs resides or where the defendant or any of the principal defendants resides, or in the case of non-resident defendant, where he may be found, at the election of the plaintiff (Sec. 2, Rule 4).

What are the different test to determine the nature of the action?

1. If the ultimate objective is to recover real property, the it is a real action.

2. The allegations of facts and the relief prayed for may determinative of the nature of the action.

3. 3.1.7.

Actions in rem, in personam and quasi in

rem

Distinguish between action in rem, in personam and quasi in rem.

Action in personam Action in rem Action quasi in rem

Directed against particular persons. The defendant is sought to be held liable.

Directed against the thing itself

Directed against particular person

As to jurisdiction over the person of the defendant

Jurisdiction over the person

of the defendant is required Jurisdiction over the person of the defendant is not

As to the purpose of the action

An action to impose a responsibility or liability upon a person directly.

A proceeding to determine the state or condition of a thing

cadastral proceeding Action for partition; action to foreclose real estate

cadastral proceeding. Action partition; action to foreclose real estate mortgage.

What is the importance of knowing the distinctions between actions in personam, in rem and quasi in rem?

The distinction is important to determine whether or not jurisdiction over the person of the defendant is required and consequently to determine the type of summons to employed.

Can an action in personam be converted into an action in rem or quasi-in rem?

Yes. In complaint for recovery of money filed by the creditor against the debtor, the said action be converted to action in rem or quasi-in rem.

Rule 57, section1 provides that preliminary attachment could be issued in cases where the defendant could not be served with summons. If the defendant cannot be served with summons either personal or substituted service, the remedy is to ask the plaintiff to ask for the issuance of writ of preliminary attachment and to attach the property of the defendant in order for the court to acquire jurisdiction over the case at least over the attached properties.

Can there be an action in rem which is a personal action?

YES. The probate of a will wherein the estate consists only of personal properties is an action in rem which is at the same time a personal action. The probate of the will is proceeding in rem. It is so because, it does not involve title to or possession of real property.

When is an action deemed commenced?

An action deemed commence upon filing of original complaint in court. If additional defendant is impleaded, the case commence in regard to him on the date of the filing of later pleading impleading him. (NOTE: filing or docket fee should also be paid for the court to acquire jurisdiction over the case)

Can a petition for judicial settlement of estate be dismissed for failure of the petitioners to aver that earnest efforts toward a compromise involving members of the same family have been made prior to the filing of the petition?

No. Article 222 of the Civil Code (Now Article 151, Family Code) applies only to ordinary civil actions or suits, that is, an action filed by a person or persons against another person or persons. Art. 222 does not apply to special proceedings, such as a petition for judicial settlement of estate.

May a compliant be filed by registered mail? If so, when it is deemed commenced?

YES. It is deemed filed or commenced as of the date of mailing. However if the requisite docket fee was actually paid, either personally or by mailing, subsequent to the mailing of the complaint, the date of such payment or mailing thereof shall be considered as the date of filing of the complaint.

The complainant filed an action to recover his shares of stock now issued to another person. He paid P600 as docket fee contending the action is one of incapable of pecuniary estimation. After the trial the defendant moved to dismiss the suit reasoning that the docket fess was not paid hence the court did not acquire jurisdiction over the action.

a. Where the proper docket fees paid?

b. Should the motion to dismiss filed by the defendant be granted?

a. No. The action to compel the assignment of shares of stock is an action for recovery of personal property rather than one incapable of pecuniary estimation. The docket fees should have been assessed on the value of the stocks sought to be assigned to the complainant.

b. No. the defendant was estopped from raising the defense of non-payment fo the docket fee since he participated in the trial. The deficiency docket fee, however, shall be assessed as a lien on the judgment award (this is the liberal interpretation of the rule).

What if the plaintiff will not pay the assessed docket fee above mentioned, but stubbornly insists that his case is one of an action incapable of pecuniary estimation?

In such a case, the liberal interpretation of the rule cannot be applied to him. Dismissal of the case for non-payment of the docket fee is thus a proper remedy. (Gochan vs. Gochan, 372 SCRA 256).