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.

Civil Procedure; Action; The requirement that the complaint or petition should allege that earnest efforts
towards a compromise have been made but that the same failed is mandatory.—Considering that Art. 151
herein-quoted starts with the negative word “No,” the requirement is mandatory that the complaint or
petition, which must be verified, should allege that earnest efforts towards a compromise have been made
but that the same failed, so that, “[i]f it is shown that no such efforts were in fact made, the case must be
dismissed.”

Same; Same; Same; The enumeration of “brothers and sisters” as members of the same family does not
comprehend “sisters-in-law”.—But the instant case presents no occasion for the application of the above-
quoted provisions. As early as two decades ago, we already ruled in Gayon v. Gayon that 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-inlaw” (hence, also “brothers-
in-law”) are not listed under Art. 217 of the New Civil Code as members of the same family. Since Art. 150
of the Family Code repeats essentially the same enumeration of “members of the family,” we find no
reason to alter existing jurisprudence on the matter.

Same; Same; Same; 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.—As regards the second issue, we
need only reiterate our ruling in O’Laco v. Co Cho Chit, citing Mendoza v. Court of Appeals, that 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.

PETITION for review of the orders of the Regional Trial Court of Ilocos Norte, Br. 16. Bello, Jr., J.

The facts are stated in the opinion of the Court.

     Juan Jacinto for petitioner.

     Alipio V. Flores for private respondent.

BELLOSILLO, J.:

Filed by petitioner as an accion publicana1 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.

Admittedly, the complaint does not allege that the parties exerted earnest towards a compromise and that
the same failed. However, private respondent Pedro G. Hernando apparently overlooked this alleged
defect since he did not file any motion to dismiss nor attack the complaint on this ground in his answer. It
was only on 7 December 1992, at the pre-trial conference, that the relationship of petitioner Gaudencio
Guerrero and respondent Hernando was noted by respondent Judge Luis B. Bello, Jr., they being married
to half-sisters hence are brothers-in-law, and on the basis thereof respondent Judge gave petitioner five
(5) days "to file his motion and amended complaint" to allege that the parties were very close relatives,
their respective wives being sisters, and that the complaint to be maintained should allege that earnest
efforts towards a compromise were exerted but failed. Apparently, respondent Judge considered this
deficiency a jurisdictional defect.
On 11 December 1992, Guerrero moved to reconsider the 7 December 1992 Order claiming that since
brothers by affinity are not members of the same family, he was not required to exert efforts towards a
compromise. Guerrero likewise argued that Hernando was precluded from raising this issue since he did
not file a motion to dismiss nor assert the same as an affirmative defense in his answer.

On 22 December 1992, respondent Judge denied the motion for reconsideration holding that "[f]ailure to
allege that earnest efforts towards a compromise is jurisdictional such that for failure to allege same the
court would be deprived of its jurisdiction to take cognizance of the case." He warned that unless the
complaint was amended within five (5) days the case would be dismissed.

On 29 January 1993, the 5-day period having expired without Guerrero amending his complaint,
respondent Judge dismissed the case, declaring the dismissal however to be without prejudice.

Guerrero appeals by way of this petition for review the dismissal by the court a quo. He raises these legal
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.

The Constitution protects the sanctity of the family and endeavors to strengthen it as a basic autonomous
social institution.2 This is also embodied in Art. 149,3 and given flesh in Art. 151, of the Family Code,
which provides:

Art. 151. No suit between members of the same family shall prosper unless it should
appear from the verified complaint or petition that earnest efforts toward a compromise
have been made, but that the same had failed. If it is shown that no such efforts were in
fact made, the case must be dismissed.

This rule shall not apply to cases which may not be the subject of compromise under the
Civil Code.

Considering that Art. 151 herein-quoted starts with the negative word "No", the requirement is
mandatory4 that the complaint or petition, which must be verified, should allege that earnest efforts
towards a compromise have been made but that the same failed, so that "[i]f it is shown that no such
efforts were in fact made, the case must be dismissed."

Further, Art. 151 is contemplated by Sec. 1, par. (j), Rule 16, of the Rules of Court which provides as a
ground for motion to dismiss "(t)hat the suit is between members of the same family and no earnest
efforts towards a compromise have been made."

The Code Commission, which drafted the precursor provision in the Civil Code, explains the reason for
the requirement that earnest efforts at compromise be first exerted before a complaint is given due course
—

This rule is introduced because it is difficult to imagine a sadder and more tragic
spectacle than a litigation between members of the same family. It is necessary that
every effort should be made toward a compromise before a litigation is allowed to breed
hate and passion in the family. It is known that a lawsuit between close relatives
generates deeper bitterness than between strangers . . . A litigation in a family is to be
lamented far more than a lawsuit between strangers . . . 5
But the instant case presents no occasion for the application of the
above-quoted provisions. As early as two decades ago, we already ruled in Gayon v.  Gayon6 that 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. Since Art.
150 of the Family Code repeats essentially the same enumeration of "members of the family", we find no
reason to alter existing jurisprudence on the matter. 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.

In his Comment, Hernando argues that ". . . although both wives of the parties were not impleaded, it
remains a truism that being spouses of the contending parties, and the litigation involves ownership of
real property, the spouses' interest and participation in the land in question cannot be denied, making the
suit still a suit between half-sisters . . ." 7

Finding this argument preposterous, Guerrero counters in his Reply that his "wife has no actual interest
and participation in the land subject of the . . . suit, which the petitioner bought, according to his
complaint, before he married his wife."8 This factual controversy however may be best left to the court a
quo  to resolve when it resumes hearing the case.

As regards the second issue, we need only reiterate our ruling in

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. The
Order of 7 December 1992 merely gave Guerrero five (5) days to file his motion and amended complaint
with a reminder that the complaint failed to allege that earnest efforts were exerted towards a
compromise. The Order of 22 December 1992, which denied Guerrero's motion for reconsideration,
simply stated that "Plaintiff if it  (sic) so desire must
amend the complaint otherwise, the court will have to dismiss the case (emphasis supplied) . . ." The
Order of 29 January 1993 dismissing the case without prejudice only made reference to an earlier order
"admonishing" counsel for Guerrero to amend the complaint, and an "admonition" is not synonymous with
"order". Moreover, since the assailed orders do not find support in our jurisprudence but, on the other
hand, are based on an erroneous interpretation and application of the law, petitioner could not be bound
to comply with them. 12

WHEREFORE, the petition is GRANTED and the appealed Orders of

SO ORDERED.

Cruz, Davide, Jr. and Quiason, JJ., concur.