JOVENCIA DE GUZMAN AND FEDERICO RECARIO, PETITIONERS, VS. JUDGE MELECIO A. GENATO OF THE COURT OF FIRST INSTANCE OF MISAMIS OCCIDENTAL, BRANCH I, OROQUIETA CITY AND AURELIO EN. …

Petition for certiorari with prohibition, to annul and set
aside the order of the respondent judge, dated November 14, 1974, denying the petitioners’ motions to
dismiss the complaint in Civil Case No. 3056 of the Court of First Instance of Misamis Occidental, entitled:  “Atty. Aurelio En. Jutba,
plaintiff, versus Jovencia de Guzman and
Federico Recario, defendants.”

The private respondent, Aurelio En. Jutba,
and the petitioner, Jovencia de Guzman, are husband
and wife.  On August 29, 1974, the
husband filed a complaint against his wife and the petitioner, Federico Recario, for indemnification of damages incurred by him on
account of the therein defendants’ adulterous acts, as well as for his share in
the fruits of the conjugal partnership properties during the time when the conjugal partnership was administered by his
wife.^[1] The case was docketed therein as Civil Case
No. 3056 and assigned to Branch I, Oroquieta City, presided by the respondent Judge Melecio A. Genato.

On October 1 and 2, 1974,
the petitioners filed their respective motions to dismiss the complaint, based
upon similar grounds, that:

“(1)  the plaintiff has no cause of action against
the defendants since the action is a suit between members of the same family
and there is no allegation in the complaint to show that earnest efforts
towards a compromise have been made before the filing of the suit, but that the
same has failed; and

“(2)  the venue is improperly laid considering that
the case involves ownership, possession and administration of real properties
so that any action affecting the same should have been filed in the court of
the province or city where the said properties are found.”^[2]

On November 14, 1974,
the respondent Judge denied the petitioners’ motions to dismiss the complaint
in an order which reads, as follows:

“The grounds of the motion to dismiss dated October 2, 1974
filed by Federico Recario as well as those filed by Jovencia de Guzman, dated October 1, 1974, not being
indubitable, but evidentiary, same are hereby denied.  The amended complaint filed by the plaintiff
dated October 21, 1974
which has been filed before the answer to the original complaint is
admitted.”^[3]

Thereafter, the respondent judge set the
pre-trial conference of the case for January 5 and 6, 1976.^[4]
Whereupon, the petitioners initiated the instant recourse.  As prayed for, a temporary restraining order
was issued on January 9, 1976,
restraining the respondents from further proceeding with Civil Case No. 3056 of
the Court of First Instance of Misamis Occidental and
from enforcing the order dated November
14, 1974.

The petitioners contend
that the respondent judge abused his discretion in assuming jurisdiction over
the case which is without a cause of action and where venue is wrongfully laid.

1.  The petitioners argue
that there is no cause of action against them because the action is a suit
between a husband and his wife and there is no allegation in the complaint that
earnest efforts towards a compromise have been made, but that the same have
failed, pursuant to Article 222 of the Civil Code.

The contention is without merit. 
In his Amended Complaint, the private respondent stated the following:

x x x                             x
x x                             x x x

“2.    That this is a case between husband, Aurelio
Jutba, the plaintiff, against his wife, Jovencia de Guzman with her paramour, Federico Recario, her co-defendant. 
In the month of April, 1969, while plaintiff was seriously ill and
hospitalized, the defendants left Manila
for unknown destination and since then they were absconding, hiding and evading
processes.  But in May, 1974 defendants
were living in adultery as husband and wife at 643 E.
Jacinto Street, Davao
City.  Twice were summoned by the P.C. for confrontation and
arrangement but refused to
appear.  So an adultery complaint was filed in
the City Fiscal’s Office of Davao
City now pending for trial.”^[5]
(Underscoring supplied)

It is apparent therefrom
that the husband had exerted efforts to meet his wife and even enlisted the
help of the Philippine Constabulary who summoned his wife “for confrontation
and arrangement,” but the wife refused to see him.  There is, thus, substantial compliance with
the law.  It is not necessary that the
plaintiff should expressly use the terms in the statute, i.e., “that earnest
efforts towards a compromise have been made, but that the same have
failed,” in his pleadings in order to comply with the requirement.  Similar allegations which would convey the
same meaning are sufficient for the purposes of the law.

2.  The petitioners also
contend that the venue of the case was improperly laid.  The petitioners argue that the case is
essentially an action involving real properties which are found in the City of
Manila and in Davao City so that the case should have
been filed with the Court of First Instance of Manila and Davao
City where the said properties are located, instead of with the Court of First
Instance of Misamis Occidental, the province where
the plaintiff resides.

The contention is devoid of merit.  The action is purely personal and is for the
recovery of damages.  Although the
plaintiff therein had mentioned real properties belonging to the conjugal
partnership which are situated in Manila
and Davao City,
he is not asking to be declared the rightful owner or lawful possessor of the
parcels of land mentioned; nor is he asking for its partition, in order to
classify this action as a real action. 
The plaintiff therein merely prayed that the defendants be ordered to
pay him the amounts of:  (a) P36,600.00,
which represents his share in the fruits of the conjugal partnership properties
during the time when the conjugal partnership
was administered by his wife because he was sick; (b) P10,000.00, which he
spent in order to restore titles and maintain a case in court for the cancellation
of fake titles; (c) P50,000.00, as moral damages, for “the sleepless
nights, great moral shock and unbearable sorrows and shameful dishonor, great
mental tension, and anguish” as a result of the defendants’ adulterous
relationship and breach of fidelity; and (d) P12,000.00, for attorney’s fees
and expenses of litigation, plus the costs of suit.^[6]The fact that the plaintiff therein had asked
for the issuance of a writ of preliminary injunction to restrain the defendant Jovencia de Guzman and/or her agents from selling certain
parcels of land belonging to the conjugal partnership does not make the case a
real action.  In so doing, the husband
merely sought to exercise his right, under Article 165 of the Civil Code, to
administer the conjugal partnership.

WHEREFORE, the petition should be, as it is hereby,
DISMISSED for lack of merit.  The
temporary restraining order heretofore issued is hereby lifted and set
aside.  Costs against the petitioners.

SO ORDERED.

Aquino and
Santos, JJ., concur.

Barredo, (Acting Chairman), and Antonio, JJ., in the result.

Abad Santos, J., no part.

^[1]
Rollo, p. 4.

^[2]
Id., p. 8, 13.

^[3]
Id., p. 16.

^[4]
Id., p. 2; Par. 5 of
Petition.

^[5]
Id., p. 34.

^[6]
Id., p. 36.