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Vda. de Mesa V Mencias

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TITLE: MAGDALENA SIBULO VDA.

DE MESA, Widow of the late Francisco De Mesa, JUAN


GILBUENA, DR. PEDRO MOLERA, DEMETRIO PRESNEDI and LUCIO VICTA, as Officers and in
representation of the Local Chapter of the Liberal Party in Muntinlupa, Rizal, and DEMETRIO R.
LORESCA, petitioners, vs. HON. EULOGIO MENCIAS and/or Judge of the Court of First Instance of
Rizal, MAXIMINO A. ARGANA, the CHIEF OF POLICE, and the MUNICIPAL TREASURER, both of
Muntinlupa, Rizal, respondents.
G.R. NO. L-24583 DATE: October 29, 1966
PONENTE: J. Castro NATURE: Statutes prescribing procedural
requirements
FACTS:
Francisco De Mesa and Maximino Argana were opponents for the mayoralty of Muntinlupa, Rizal
in the 1963 elections. De Mesa won the election and thereafter proclaimed and assumed office.
Meanwhile, the defeated candidate Argana, filed an election protest against De Mesa charging him of
the perpetration of frauds, terrorism and other irregularities in certain precincts. De Mesa, on the other
hand filed a counter-protest and sought to shift responsibility for irregularities to the protestant and his
followers. However, while the case is pending Mayor De Mesa was assassinated. Protestant Argana
moved for the constitution of committees on revision of ballots. Accordingly, the court a quo required the
protestee's widow and children to appear within fifteen days from notice in order to be substituted for
said protestee, if they so desired. They did not, however, comply. Proceeding ex parte, on June 11,
1964, the protestant Argana reiterated his move for the appointment of commissioners on revision of
ballots, And so, without notice to the protestee and/or his legal representative — as indeed none had
thus far been named — the trial court granted the motion aforesaid. With the constitution of the
committee on revision of ballots in which, incidentally, Ramon Antilon Jr. was motu proprio named and
then served as commissioner for the deceased protestee, the trial court, in its decision of August 10,
1964 adjudged the protestant Maximino Argana as the duly elected mayor of Muntinlupa, in the 1963
elections.
De Mesa’s widow and local chapter of the LP which deceased was member filed a petition which
include among others for the reconsideration of the August 10, 1964 decision upon the ground that, for
failure to order the protestant to procure the appointment of a legal representative of the deceased
protestee after his widow and children had failed to appear, pursuant to the applicable provisions of the
Rules of Court, it was legally improper for the trial court to have proceeded ex parte with the election
case
The trial court denied the movants' petition for leave to represent the deceased protestee, and order
stricken from the record their motion for reconsideration and new trial and their cautionary notice of
appeal. The movants elevated the case to CA on a petition for certiorari and mandamus with preliminary
injunction.
ISSUE/S:
WON Sec 17, Rule 3 of the old Rules of Court connotes a directory or mandatory compliance.
DOCTRINES | HELD:
It is no argument against this conclusion to contend that the requirement for the procurement of a
legal representative of a deceased litigant is couched in the permissive term "may" instead of the
mandatory word "shall". While the ordinary acceptations of these terms may indeed be resorted to as
guides in the ascertainment of the mandatory or directory character of statutory provisions, they are in
no wise absolute and inflexible criteria in the vast areas of law and equity. Depending upon a
consideration of the entire provision, its nature, its object and the consequences that would follow from
construing it one way or the other, the convertibility of said terms either as mandatory or permissive is a
standard recourse in statutory construction. Thus, Black is authority for the rule that " Where the statute
1
provides for the doing of some act which is required by justice or public duty, or where it invests a public
body, municipality or public officer with power and authority to take some action which concerns the
public interest or rights of individuals, the permissive language will be construed as mandatory and the
execution of the power may be insisted upon as a duty"(Black, Interpretation of Laws, pp. 540-543). The
matter here involved not only concerns public interest but also goes into the jurisdiction of the trial court
and is of the essence of the proceedings taken thereon. On this point, there is authority to the fact that
in statutes relating to procedure, as is the one now under consideration, every act which is jurisdictional,
or of the essence of the proceedings, or is prescribed for the protection or benefit of the party affected,
is mandatory.
RULING:
Yes. The death of the protestee De Mesa did not abate the proceedings in the election protest
filed against him, it may be stated as a rule that an election contest survives and must be prosecuted to
final judgment despite the death of the protestee. With the death of De Mesa, however, contingency not
expressly provided for by the Revised Election Code was ushered in. It is our considered view that
Section 17, Rule 3 of the Rules of Court applies to election contests to the same extent and with the
same force and effect as it does in ordinary civil actions. And we declare that unless and until the
procedure therein detailed is strictly adhered to, proceedings taken by a court in the absence of a duly
appointed legal representative of the deceased protestee must be stricken down as null and void.
NOTES:
SEC. 17. Death of 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 to appear and to be substituted for
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 produce 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. . . .

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