MARGARET ANN WAINRIGHT VERSOZA, JOSE MA. VERSOZA, JR., CHARLES JOHN VERSOZA AND VIRGINIA FELICE VERSOZA, PLAINTIFFS-APPELLANTS, VS. JOSE MA. VERSOZA, DEFENDANT-APPELLEE.

The question before us, framed in legal setting, is the
correctness of the lower court’s order dismissing, without prejudice, the
complaint seeking, inter alia, future support
upon the ground that there is no allegation therein that earnest efforts toward
a compromise were made but that the same have failed, in infringement of
Article 222 of the Civil Code.

With this problem in mind, we turn to the pivotal facts.

On March 4, 1964, a verified complaint, later amended, for
P1,500.00 monthly support, support in arrears, and damages, and custody of
children, with a petition for support pendente
lite^[1]
was lodged against Jose Ma. Versoza by his wife, Margaret Ann Wainright Versoza, and their three minor children, Jose Ma. Versoza, Jr.,
Charles John Versoza and Virginia Felice
Versoza. 
Reasons given are that defendant has abandoned plaintiffs without
providing for their support and maintains illicit relations with another woman.

Defendant’s answer attacked the complaint on the claim that it is
premature and/or that it states no cause of action.  Because, the complaint which involves members
of the same family^[2]
does not allege earnest efforts toward a compromise before the complaint was
filed as set forth in the statute mentioned at the start of this opinion.  Then followed defendant’s
motion for preliminary hearing on jurisdiction.  Defendant there argued that compliance with
Article 222 of the Civil Code aforesaid was a condition pre­cedent and should
have been alleged in the complaint.

On February
22, 1965, following
appropriate proceedings, the lower court came out with its first appealed
order.  It there resolved to dismiss the
complaint without prejudice, upon the ground that there was no showing that
efforts have been exerted to settle the case amicably before suit was started.

Plaintiffs moved to
reconsider.  Annexed to its motion was an
affidavit of their counsel to the effect that before court action was taken
efforts were made to settle the case amicably, but which were fruitless.

On March
30, 1965, the lower
court brushed aside this motion.

In an effort to conform
to the position taken by the lower court, plaintiffs filed a second motion for
the reconsideration of the orders of February 22, and March
30, 1965.  Plaintiffs at the same time sought admission
of their second amended complaint in which the required averment was made to
obviate the objection, to their complaint. 
They there alleged that before starting the present suit, they sought
amicable settlement but were unsuccessful.

On June 22, 1965,
the second motion for reconsideration was likewise denied by the lower court
“(f)or lack of merit”.

The dismissal orders are now the subject of appeal.

1.  Plaintiffs argue that the
Civil Code requirement of attempt to reach a compromise and of its failure need
not be alleged in the complaint.  They
claim that some such fact may be proved either at the main hearing or at the
preliminary hearing on the motion to dismiss.

The text of Article 222 of the Civil Code is this: “No suit
shall be filed or maintained between members of the same family unless it
should appear that earnest efforts toward a compromise have been made, but that
the same have failed, subject to the limitations in
article 2035.”^[3]
The requirement in Article 222 has been given more teeth by Section 1(j), Rule
16 of the Rules of Court, which states as ground for a motion to dismiss that
“(t)he suit is between members of the same family and no earnest efforts
towards a compromise have been made.”

The cumulative impact of the statute and the rule just adverted
to is that earnest efforts to reach a compromise and failure thereof must –
ordinarily – be alleged in the complaint. 
The Civil Code provision that “(n)o suit
shall be filed or maintained” simply means that the attempt to compromise
and inability to arrive thereat is a condition precedent to the filing of the
suit.  As such it is a part of
plaintiffs’ cause of action.  Justice
J.B.L. Reyes and Judge Puno^[4]
bolstered this view with their statement that “(t)he
terms of article 222 require express allegation of an attempt to
compromise and its failure; otherwise there is no cause of
action stated.”

2. The foregoing, however, is but a statement of the
general rule.  Future
support operates outside the ambit thereof. 
Mucius Scaevola^[5]
expresses the view that no objection can be made to a compromise “cuando el derecho es renunciable, eminentemente privado.” Scaevola, however, emphasizes: “(P)ero el derecho a la vida no lo es.” This brings
us to the legal provision Scaevola commented upon,
namely, Article 1814 of the Spanish Civil Code of 1889, which reads:

“Art. 1814. 
No puede transigir
sobre el estado civil de las personas, ni sobre las cuestiones
matrimoniales, ni sobre alimentos futuros.”^[6]

So it is, that Colin y Capitant^[7]
observed: “Una Cosa es que la transacción
sea en principio un acto lícito, con exclusión
de aquellas materias a que se refiere el art. 1814 del Codigo civil.”

The philosophy behind the rule is best expressed by Manresa^[8]
in the following terms:

“Aunque el Código
no lo diga expresamente, desde luego se comprende que, por regla general, pueden ser objeto de transacción todas las cosas que
están en el comercio de los hombres, siempre que no se halle prohibido
por la ley.  Esta es la regla general;
pero hay casos en que, por razones
de moralidad o por
otras consideraciones no menos atendibles, no puede admitirse la transacción, como
sucede, por ejemplo,. en materia
de estado civil de las
personas, de cuestiones matrimoniales
y de alimentos, y otros
que tampoco son susceptibles de transacción por afectar al
interés público
o social y no estar en el dominio o en la potestad de los particulares el sustraerlos, a los efectos rigurosos de la ley, según ocurre con los delitos y demás transgresiones punibles del derecho.

x                               x                                  x

Réstanos ocuparnos de otra
prohibición impuesta también por el art.
1814 en su última
parte.  Nos referimos a la establecida por el mismo respecto de la transacción sobre los alimentos futuros; prohibición que se funda en poderosas razones de
moralidad que
no pueden ocultarse,
ni pasar
desapercibidas para nadie que detenidamente
medite sobre ello.

En efecto, en rigor de principios, la ley concede los alimentos en razón a la necesidad que de ellos tiene
el alimentista para vivir, y es evidente que transigir
sobre ellos, equivaldría a renunciar
en parte a la vida, como ha dicho un autor (‘Colección de las Instituciones juridicas políticos de los pueblos modernos,’ tomo 13, pág. 792); y si no le
fueran necesarios
pudiendo por tal motivo renunciarlos,
no cabría tampoco
transacción, porque
no tendría derecho
a percibirlos.”

The foregoing but emphasizes the concept of support.  For, support is, amongst others, everything
that is indispensable for sustenance.^[9]
The right to support cannot be: (1) renounced; (2) transmitted to third
persons; nor (3) compensated with what the recipient owes the obligor.^[10]
Compensation may not even be set up against a creditor who has a claim for
support due by gratuitous title.^[11]
Of course, support in arrears is a different thing altogether.  It may be compensated, renounced and
transmitted by onerous or gratuitous title.^[12]  In Coral vs. Gallego,^[13]
the Court of Appeals has had occasion to declare that the right to support is
not susceptible of future transactions under Article 1814 of the old Civil
Code.

Article 1814 of the Spanish Civil Code was reproduced in Article
2035 of the new Civil Code – in an expanded form – as follows:

“ART. 2035.  No compromise
upon the following questions shall be valid:

(1) The civil status of persons;

(2) The validity of a marriage or a legal separation;

(3) Any ground for legal separation;

(4) Future support;

(5) The jurisdiction of courts;

(6) Future legitime.”

It thus appears that Article 2035 has roots deeper than Article
222.  For, whereas Article 222 is
inserted as a new concept in the present Code in a laudable effort to obviate a
sad and tragic spectacle occasioned by a litigation
between members of the same family, Article 2035 firmly maintains the ancient
injunction against compromise on matters involving future support.  And this is as it should be.  For, even as Article 222 requires earnest
efforts at a compromise and inability to reach one as a condition precedent to
the filing and maintenance of a suit “between the members of the same
family”, that same article took good care to add: “subject to
the limitations in article 2035.”

Plaintiffs ask for support past, present and future.  There is also the prayer for alimony pendente lite.  Since the present action also revolves on the
right to future support and because compromise on future support is proscribed,^[14]
then the conclusion is irresistible that an attempt at compromise of future
support and failure thereof is not a condition precedent to the filing of the
present suit.  It need not be alleged in
the complaint.  The very opening
statement in Article 2035 unmistakably confirms our view.  It says that “(n)o
compromise upon the following questions shall be valid:
x x x (4) Future
support.”^[15]
We cannot afford to give a loose view to this controlling statute.  We may not disregard it.  To do so is to misread the law, to write off
an explicit congressional will, to cross the line which circumscribes courts of
justice and step into legislative area.

Mendoza vs. Court of Appeals, 1967B Phild. 82, is to be read as controlling here.  In that case, the wife filed in the Court of
First Instance of Nueva Ecija
an action for support against her husband who was then employed in a hospital
in the United States.  Defendant, by counsel, moved to dismiss, for
the reason that the complaint failed to state a cause of action “because
it contained no allegation that earnest efforts toward a compromise have been
made before the filing of the suit, and invoking the provisions of Article 222
of the Civil Code of the Philippines.”
The Court of First Instance refused to entertain the motion to dismiss.  Defendant petitioned the Court of Appeals for
a writ of prohibition.  The appellate court
denied the writ prayed for.  Defendant
petitioned this Court for review.  We
affirmed.  In that first judicial test,
this Court, speaking thru Mr. Justice J.B.L. Reyes, held:

“While we agree that petitioner’s position represents a
correct statement of the general rule on the matter, we are nevertheless
constrained to hold that the Court of Appeals and the Court of First Instance
committed no error in refusing to dismiss the complaint, for on its face, the
same involved a claim for future support that under Article 2035
of the Civil Code of the Philippines can not be subject of a valid compromise,
and is, therefore, outside the sphere of application of Article 222 of the Code
upon which petitioner relies.  This
appears from the last proviso of said Article 222, already quoted.  x x
x.

x                                x                                  x

Since no valid compromise is possible on these issues, a showing
of previous efforts to compromise them
would be superfluous.

It may be that the complaint asks for both future support and
support in arrears, as petitioner contends.  But, the possibility of compromise on the
latter does not negate the existence of
a valid cause of action for future
support, to which Article 222 can not apply.”^[16]

Although the complaint
herein seeks custody of minor children and damages as well, the prime object is
support.  And, of importance, of course,
is future support.  The reliefs sought are intimately related to each other.  They all spring from the fact that husband
and wife are separated from each other. 
So it is, that expediency dictates that they be, as they are now, placed
together in one complaint.  For,
multiplicity of suits is not favored in law. 
Since one of the causes of action, that for future
support, may be lodged in court without the compromise requisite in Article 222
of the Civil Code, the complaint herein, as we have ruled in Mendoza, may not be dismissed.

We, accordingly, hold that the lower court erred in dismissing
the complaint.

3. But even on the assumption that it was error on the part of
plaintiffs to have failed to so allege, plaintiffs should not be barred from
making an amendment to correct it.

Parenthetically, after a responsive pleading has been served,
amendments may be made only upon leave of court.^[17]
But, in the furtherance of justice, the court “should be liberal in
allowing amendments to pleadings to avoid multiplicity of suits and in order
that the real controversies between the parties are presented, their rights
determined and the case decided on the merits without unnecessary delay.”^[18]

Thus, the instances wherein this Court considered allowance of an
amendment not justified are limited.  As
defendant correctly points out, a proposed amendment may be refused when it
confers jurisdiction on the court in which it is filed, if the cause of action
originally set forth was not within that court’s jurisdiction.^[19]  An amendment may also be refused when the
cause of action is substantially altered.^[20]

A typical case which merited refusal of an amend­ment is Rosario
vs. Carandang, supra.  There, the original complaint was one for
forcible entry and detainer over which the Court of
First Instance, where the complaint was filed, had no jurisdiction.  The amendment sought by plaintiff was the
inclusion of an allegation that the defendants were claiming ownership over the
land in dispute.  The proposed amendment
would thus convert the case from one of forcible entry and detainer
into one of recovery of possession, which is within the jurisdiction of the
Court of First Instance.  The court
properly denied the amendment.

The alleged defect is that the present complaint does not state a
cause of action.  The proposed amendment
seeks to complete it.  An amendment to
the effect that the requirements of Article 222 have been complied with does
not confer jurisdiction upon the lower court. 
With or without this amendment, the subject-matter of the action remains
as one for support, custody of children, and damages, cognizable by the court
below.

To illustrate, Tamayo vs.
San Miguel Brewery, Inc.,^[21]
allowed an amendment which “merely corrected a defect in the allegation of
plaintiff-appellant’s cause of action, because as it then
stood, the original complaint stated no cause
of action.” We there ruled out as inapplicable the holding
in Campos Rueda Corporation vs.
Bautista, supra, that an amendment cannot be made so as to confer
jurisdiction on the court.

The lower court, in the interest of justice, should have allowed
plaintiffs to amend their complaint instead of granting the motion to
dismiss.  This it could have done under
Section 3 of Rule 16 of the Rules of Court. 
For, the defect in the complaint is curable.

For the reasons given –

(1) the orders of the lower court of February 22, 1965, March 30,
1965, and June 22, 1965 are hereby set aside; and

(2) the record of this case is hereby
remanded to the Court of First Instance of Rizal, Quezon City, Branch IX, with
instructions to admit the second amended complaint and to conduct further
proceedings not inconsistent with the opinion herein.

Costs against defendant.

SO ORDERED.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando, and
Capistrano, JJ., concur.

^[1]
Civil Case No. Q-7870, Court of First Instance of Rizal, Quezon
City, Branch IX, entitled “Margaret Ann Wainright Versoza, et al.,
Plaintiffs, versus Jose Ma. Versoza, Defendant”, for support and damages.

^[2]
Article 217 of the Civil Code provides that family relations shall include
those (1) between husband and wife; (2) between parent and child; (3) among
other ascendants and their descendants; and (4) among brothers and sister.  Francisco, Comments on the Revised Rules of
Court, Vol. I, 1965 ed., pp. 694-695.

^[3]
Emphasis supplied.

^[4]
Outline of Philippine Civil Law, 1956 ed., Vol. I, p.
222.

^[5]
Código Civil, 1953, Tomo
XXVIII, pág. 347.

^[6]
Emphasis supplied.

^[7]
Curso
Elemental de Derecho Civil, 1955, Tomo
IV, pág.
1001; emphasis supplied.

^[8]
Comentarios al Código Civil Español,
1931, Tomo XII, págs. 103, 107; emphasis
supplied.

^[9]
Article 290, Civil Code.

^[10]
Article 301, Civil Code.

^[11]
Par. 2, Article 1287, Civil Code.

^[12]
Par. 2, Article 301, Civil Code.

^[13]
38 O.G. 3158, cited in Padilla, Civil Code Anno.,
1956 ed., Vol. IV, pp. 648-649.

^[14]
Advincula vs.
Advincula, L- 19065, January 31, 1964, citing Coral vs. Gallego,
supra.  See also:  Velayo vs. L-23528,
July 21,1967,
Velayo vs. Velayo,
L-14541, March 30,1960.

^[15]
Emphasis supplied.

^[16]
At pp. 84-85; emphasis supplied.

^[17]
Section 2 and 3, Rule 10, Rules of Court.

^[18]
Shaffer vs. Palma, 1968A Phild. 767, 777.

^[19]
Rosario vs. Carandang, 96 Phil. 845, 850, 851;
Campos Rueda Corporation vs. Bautista,
L-18453, September 29, 1962 cited in Tamayo
vs. San Miguel Brewery, Inc., L-17749, January 31, 1964.

^[20]
Section 3, Rule 10, Rules of Court; Arches vs. Villaruz,
102 Phil. 661, 668.  See: Guirao vs. Ver, 16 Supreme
Court of Reports Anno. 638,
640-641; and Shaffer vs. Palma, supra.

^[21]
Supra; emphasis supplied.