G.R.No.190710.June6,2011.

JESSE U. LUCAS, petitioner, vs. JESUS S. LUCAS,

respondent.
Actions; Pleadings, Practice and Procedure; An order denying a
motion to dismiss is an interlocutory order which neither terminates
nor finally disposes of a case, as it leaves something to be done by
the court before the case is finally decided on the meritsas such,
the general rule is that the denial of a motion to dismiss cannot be
questioned in a special civil action for certiorari, which is a remedy
designed to correct errors of jurisdiction and not errors of
judgment.Primarily,weemphasizethattheassailedOrdersofthe
trial court were orders denying respondents motion to dismiss the
petition for illegitimate filiation. An order denying a motion to
dismiss is an interlocutory order which neither terminates nor
finally disposes of a case, as it leaves something to be done by the
court before the case is finally decided on the merits. As such, the
general rule is that the denial of a motion to dismiss cannot be
questionedinaspecialcivilactionforcertiorari,whichisaremedy
designedtocorrecterrorsofjurisdictionandnoterrorsofjudgment.
Neither can a denial of a motion to dismiss be the subject of an
appealunlessanduntilafinaljudgmentororderisrendered.Ina
numberofcases,thecourthasgrantedtheextraordinaryremedyof
certiorarionthedenialofthemotiontodismissbutonlywhenithas
been tainted with grave abuse of discretion amounting to lack or
excessofjurisdiction.Inthepresentcase,wediscernnograveabuse
ofdiscretiononthepartofthetrialcourtindenyingthemotionto
dismiss.
Same; Jurisdiction; A petition directed against the thing
itself or the res, which concerns the status of a person, like a petition
for adoption, annulment of marriage, or correction of entries in the
birth certificate, is an action in rem.An action in personam is
lodgedagainstapersonbasedonpersonalliability;anactionin rem
is directed against the thing itself instead of the person; while an
actionquasi in remnamesapersonasdefendant,butitsobjectisto
subjectthatpersonsinterestinapropertytoacorrespondinglienor
obligation.Apetitiondirectedagainstthethingitselfortheres,
_______________
*SECONDDIVISION.

668

668

SUPREMECOURTREPORTSANNOTATED
Lucas vs. Lucas

which concerns the status of a person, like a petition for adoption,

annulment of marriage, or correction of entries in the birth

certificate,isanactionin rem.Inanaction in personam,jurisdiction
overthepersonofthedefendantisnecessaryforthecourttovalidly
try and decide the case. In a proceeding in rem or quasi in rem,
jurisdictionoverthepersonofthedefendantisnotaprerequisiteto
confer jurisdiction on the court, provided that the latter has
jurisdictionovertheres. Jurisdiction over the res is acquired either
(a)bytheseizureofthepropertyunderlegalprocess,wherebyitis
brought into actual custody of the law, or (b) as a result of the
institution of legal proceedings, in which the power of the court is
recognizedandmadeeffective.
Same; Same; Filiation; Due Process; A petition to establish
illegitimate filiation is an action in remby the simple filing of the
petition to establish illegitimate filiation before the Regional Trial
Court (RTC), which undoubtedly had jurisdiction over the subject
matter of the petition, the latter thereby acquired jurisdiction over
the case; If at all, service of summons or notice is made to the
defendant, it is not for the purpose of vesting the court with
jurisdiction, but merely for satisfying the due process
requirements.The herein petition to establish illegitimate filiation
isanactionin rem. By the simple filing of the petition to establish
illegitimate filiation before the RTC, which undoubtedly had
jurisdictionoverthesubjectmatterofthepetition,thelatterthereby
acquired jurisdiction over the case. An in rem proceeding is
validated essentially through publication. Publication is notice to
the whole world that the proceeding has for its object to bar
indefinitely all who might be minded to make an objection of any
sort to the right sought to be established. Through publication, all
interested parties are deemed notified of the petition. If at all,
serviceofsummonsornoticeismadetothedefendant,itisnotfor
the purpose of vesting the court with jurisdiction, but merely for
satisfyingthedueprocessrequirements.Thisisbutproperinorder
toaffordthepersonconcernedtheopportunitytoprotecthisinterest
if he so chooses. Hence, failure to serve summons will not deprive
thecourtofitsjurisdictiontotryanddecidethecase.Insuchacase,
thelackofsummonsmaybeexcusedwhereitisdeterminedthatthe
adversepartyhad,infact,theopportunitytofilehisopposition,as
inthiscase.Wefindthatthedueprocessrequirementwithrespect
torespondenthasbeensatisfied,consideringthathe
669

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Lucas vs. Lucas

has participated in the proceedings in this case and he has the
opportunitytofilehisoppositiontothepetitiontoestablishfiliation.
Same; Same; Same; A proceeding is adversarial where the party
seeking relief has given legal warning to the other party and
afforded the latter an opportunity to contest it.To address
respondents contention that the petition should have been
adversarial in form, we further hold that the herein petition to
establish filiation was sufficient in form. It was indeed adversarial
innaturedespiteitscaptionwhichlackedthenameofadefendant,
thefailuretoimpleadrespondentasdefendant,andthenonservice
ofsummonsuponrespondent.Aproceedingisadversarialwherethe

partyseekingreliefhasgivenlegalwarningtotheotherpartyand
afforded the latter an opportunity to contest it. In this petition
classified as an action in remthe notice requirement for an
adversarial proceeding was likewise satisfied by the publication of
the petition and the giving of notice to the Solicitor General, as
directedbythetrialcourt.
Same; Same; Pleadings, Practice and Procedure; Cause of
Action; Elements; A fact is essential if it cannot be stricken out
without leaving the statement of the cause of action inadequate.
The petition to establish filiation is sufficient in substance. It
satisfiesSection1,Rule8oftheRulesofCourt,whichrequiresthe
complaint to contain a plain, concise, and direct statement of the
ultimate facts upon which the plaintiff bases his claim. A fact is
essential if it cannot be stricken out without leaving the statement
of the cause of action inadequate. A complaint states a cause of
actionwhenitcontainsthefollowingelements:(1)thelegalrightof
plaintiff,(2)thecorrelativeobligationofthedefendant,and(3)the
actoromissionofthedefendantinviolationofsaidlegalright.
Same; Same; Same; Paternity; Evidence; A party is confronted
by the socalled procedural aspects in a paternity case during trial,
when the parties have presented their respective evidencethey are
matters of evidence that cannot be determined at this initial stage of
the proceedings; A prima facie case is built by a partys evidence and
not by mere allegations in the initiatory pleading.The statement
in Herrera v. Alba, 460 SCRA 197 (2005), that there are four
significant procedural aspects in a traditional paternity case which
partieshavetofacehasbeenwidelymisunderstoodandmisapplied
in this case. A party is confronted by these socalled procedural
aspectsduringtrial,
670

670

SUPREMECOURTREPORTSANNOTATED
Lucas vs. Lucas

whenthepartieshavepresentedtheirrespectiveevidence.Theyare
mattersofevidencethatcannotbedeterminedatthisinitialstageof
the proceedings, when only the petition to establish filiation has
beenfiled.TheCAsobservationthatpetitionerfailedtoestablisha
prima faciecasethefirstproceduralaspectinapaternitycaseis
thereforemisplaced.Aprima faciecaseisbuiltbyapartysevidence
andnotbymereallegationsintheinitiatorypleading.Clearlythen,
it was also not the opportune time to discuss the lack of a prima
facie case visvis the motion for DNA testing since no evidence
has, as yet, been presented by petitioner. More essentially, it is
premature to discuss whether, under the circumstances, a DNA
testing order is warranted considering that no such order has yet
beenissuedbythetrialcourt.Infact,thelatterhasjustsetthesaid
caseforhearing.
Same; Same; Same; Deoxyribonucleic Acid (DNA) Testing;
Paternity; Searches and Seizures; In some foreign states, a court
order for blood testing is considered a search, which, under their
Constitutions (as in ours), must be preceded by a finding of
probable cause in order to be valid, hence, the requirement of a
prima facie case, or reasonable possibility, was imposed in civil
actions as a counterpart of a finding of probable cause; The same

condition precedent should be applied in our jurisdiction to protect

the putative father from mere harassment suitsthus, during the
hearing on the motion for Deoxyribonucleic Acid (DNA) testing, the
petitioner must present prima facie evidence or establish a
reasonable possibility of paternity.In some states, to warrant the
issuance of the DNA testing order, there must be a show cause
hearingwhereintheapplicantmustfirstpresentsufficientevidence
to establish a prima facie case or a reasonable possibility of
paternityorgoodcausefortheholdingofthetest.Inthesestates,
acourtorderforbloodtestingisconsideredasearch,which,under
their Constitutions (as in ours), must be preceded by a finding of
probable cause in order to be valid. Hence, the requirement of a
prima facie case, or reasonable possibility, was imposed in civil
actions as a counterpart of a finding of probable cause. The
Supreme Court of Louisiana eloquently explainedAlthough a
paternity action is civil, not criminal, the constitutional prohibition
againstunreasonablesearchesandseizuresisstillapplicable,anda
proper showing of sufficient justification under the particular
factualcircumstancesofthecasemustbemadebeforeacourtmay
order a compulsory blood test. Courts in various jurisdictions have
differedregardingthekindofprocedureswhicharere
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671

Lucas vs. Lucas

quired,butthosejurisdictionshavealmostuniversallyfoundthata
preliminary showing must be made before a court can
constitutionally order compulsory blood testing in paternity cases.
We agree, and find that, as a preliminary matter, before the court
may issue an order for compulsory blood testing, the moving party
must show that there is a reasonable possibility of paternity. As
explained hereafter, in cases in which paternity is contested and a
party to the action refuses to voluntarily undergo a blood test, a
showcausehearingmustbeheldinwhichthecourtcandetermine
whether there is sufficient evidence to establish a prima facie case
whichwarrantsissuanceofacourtorderforbloodtesting.Thesame
condition precedent should be applied in our jurisdiction to protect
the putative father from mere harassment suits. Thus, during the
hearingonthemotionforDNAtesting,thepetitionermustpresent
prima facie evidence or establish a reasonable possibility of
paternity.

PETITION for review on certiorari of the decision and

resolutionoftheCourtofAppeals.
ThefactsarestatedintheopinionoftheCourt.
Cruz, Neria & Carpio Law Officesforpetitioner.
Punzalan, Lising & Punsalan forrespondent.
Ramirez, Lazaro and Associates Law Office cocounselfor
respondent.
NACHURA,J.:
Is a prima facie showing necessary before a court can
issue a DNA testing order? In this petition for review on
certiorari,weaddressthisquestiontoguidetheBenchand
the Bar in dealing with a relatively new evidentiary tool.
Assailed in this petition are the Court of Appeals (CA)

Decision1 dated September 25, 2009 and Resolution dated

December17,2009.
Theantecedentsofthecaseare,asfollows:
_______________
1 Penned by Associate Justice Pampio A. Abarintos, with Associate
Justices Juan Q. Enriquez, Jr. and Francisco P. Acosta, concurring;
Rollo,pp.3546.
672

672

SUPREMECOURTREPORTSANNOTATED
Lucas vs. Lucas

On July 26, 2007, petitioner, Jesse U. Lucas, filed a

PetitiontoEstablishIllegitimateFiliation(withMotionfor
the Submission of Parties to DNA Testing)2 before the
Regional Trial Court (RTC), Branch 72, Valenzuela City.
Petitioner narrated that, sometime in 1967, his mother,
ElsieUy(Elsie),migratedtoManilafromDavaoandstayed
with a certain Ate Belen (Belen) who worked in a
prominent nightspot in Manila. Elsie would oftentimes
accompany Belen to work. On one occasion, Elsie got
acquainted with respondent, Jesus S. Lucas, at Belens
workplace,andanintimaterelationshipdevelopedbetween
the two. Elsie eventually got pregnant and, on March 11,
1969,shegavebirthtopetitioner,JesseU.Lucas.Thename
ofpetitionersfatherwasnotstatedinpetitionerscertificate
oflivebirth.However,Elsielaterontoldpetitionerthathis
father is respondent. On August 1, 1969, petitioner was
baptized at San Isidro Parish, Taft Avenue, Pasay City.
Respondent allegedly extended financial support to Elsie
and petitioner for a period of about two years. When the
relationshipofElsieandrespondentended,Elsierefusedto
accept respondents offer of support and decided to raise
petitioner on her own. While petitioner was growing up,
Elsie made several attempts to introduce petitioner to
respondent,butallattemptswereinvain.
Attached to the petition were the following: (a)
petitionerscertificateoflivebirth;(b)petitionersbaptismal
certificate; (c) petitioners college diploma, showing that he
graduatedfromSaintLouisUniversityinBaguioCitywith
a degree in Psychology; (d) his Certificate of Graduation
fromthesameschool;(e)CertificateofRecognitionfromthe
University of the Philippines, College of Music; and (f)
clippingsofseveralarticlesfromdifferentnewspapersabout
petitioner,asamusicalprodigy.
Respondent was not served with a copy of the petition.
Nonetheless,respondentlearnedofthepetitiontoestablish
_______________
2Id.,atpp.5059.
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VOL.650,JUNE6,2011

673

Lucas vs. Lucas

filiation. His counsel therefore went to the trial court on
August29,2007andobtainedacopyofthepetition.
Petitioner filed with the RTC a Very Urgent Motion to
Try and Hear the Case. Hence, on September 3, 2007, the
RTC, finding the petition to be sufficient in form and
substance, issued the Order3 setting the case for hearing
andurginganyonewhohasanyobjectiontothepetitionto
filehisopposition.ThecourtalsodirectedthattheOrderbe
published once a week for three consecutive weeks in any
newspaper of general circulation in the Philippines, and
that the Solicitor General be furnished with copies of the
Order and the petition in order that he may appear and
representtheStateinthecase.
On September 4, 2007, unaware of the issuance of the
September 3, 2007 Order, respondent filed a Special
Appearance and Comment. He manifested inter alia that:
(1) he did not receive the summons and a copy of the
petition; (2) the petition was adversarial in nature and
thereforesummonsshouldbeservedonhimasrespondent;
(3) should the court agree that summons was required, he
was waiving service of summons and making a voluntary
appearance;and(4)noticebypublicationofthepetitionand
the hearing was improper because of the confidentiality of
thesubjectmatter.4
On September 14, 2007, respondent also filed a
Manifestation and Comment on Petitioners Very Urgent
Motion to Try and Hear the Case. Respondent reiterated
that the petition for recognition is adversarial in nature;
hence,heshouldbeservedwithsummons.
After learning of the September 3, 2007 Order,
respondentfiledamotionforreconsideration.5 Respondent
averredthatthepetitionwasnotindueformandsubstance
because petitioner could not have personally known the
matters that were alleged therein. He argued that DNA
testingcannotbehadon
_______________
3PennedbyExecutiveJudgeMariaNenaJ.Santos.
4Rollo,p.76.
5Id.,atpp.156157.
674

674

SUPREMECOURTREPORTSANNOTATED
Lucas vs. Lucas

the basis of a mere allegation pointing to respondent as

petitionersfather.Moreover,jurisprudenceisstillunsettled
ontheacceptabilityofDNAevidence.
On July 30, 2008, the RTC, acting on respondents
motionforreconsideration,issuedanOrder6dismissingthe
case.Thecourtremarkedthat,basedonthecaseofHerrera
v. Alba,7 there are four significant procedural aspects of a
traditionalpaternityactionwhichthepartieshavetoface:a
prima facie case, affirmative defenses, presumption of

legitimacy,andphysicalresemblancebetweentheputative
fatherandthechild.Thecourtopinedthatpetitionermust
first establish these four procedural aspects before he can
present evidence of paternity and filiation, which may
include incriminating acts or scientific evidence like blood
group test and DNA test results. The court observed that
thepetitiondidnotshowthattheseproceduralaspectswere
present. Petitioner failed to establish a prima facie case
considering that (a) his mother did not personally declare
that she had sexual relations with respondent, and
petitionersstatementastowhathismothertoldhimabout
hisfatherwasclearlyhearsay;(b)thecertificateoflivebirth
was not signed by respondent; and (c) although petitioner
used the surname of respondent, there was no allegation
thathewastreatedasthechildofrespondentbythelatter
or his family. The court opined that, having failed to
establishaprima faciecase,respondenthadnoobligationto
presentanyaffirmativedefenses.Thedispositiveportionof
thesaidOrderthereforereads:
WHEREFORE, for failure of the petitioner to establish
compliance with the four procedural aspects of a traditional
paternity action in his petition, his motion for the submission of
partiestoDNAtestingtoestablishpaternityandfiliationishereby
denied.ThiscaseisDISMISSEDwithoutprejudice.
_______________
6PennedbyActingPresidingJudgeMa.BelenRingpisLiban;id.,atpp.61
64.
7499Phil.185;460SCRA197(2005).
675

VOL.650,JUNE6,2011

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Lucas vs. Lucas

SOORDERED.8

Petitioner seasonably filed a motion for reconsideration

totheOrderdatedJuly30,2008,whichtheRTCresolvedin
his favor. Thus, on October 20, 2008, it issued the Order9
settingasidethecourtspreviousorder,thus:
WHEREFORE, in view of the foregoing, the Order dated July
30,2008isherebyreconsideredandsetaside.
Let the Petition (with Motion for the Submission of Parties to
DNA Testing) be set for hearing on January 22, 2009 at 8:30 in
the morning.
xxxx
SOORDERED.10

Thistime,theRTCheldthattherulingonthegrounds
relieduponbypetitionerforfilingthepetitionispremature
consideringthatafullblowntrialhasnotyettakenplace.
The court stressed that the petition was sufficient in form
and substance. It was verified, it included a certification
against forum shopping, and it contained a plain, concise,
and direct statement of the ultimate facts on which
petitionerreliesonforhisclaim,inaccordancewithSection

1,Rule8oftheRulesofCourt.Thecourtremarkedthatthe
allegation that the statements in the petition were not of
petitionerspersonalknowledgeisamatterofevidence.The
courtalsodismissedrespondentsargumentsthatthereisno
basisforthetakingofDNAtest,andthatjurisprudenceis
stillunsettledontheacceptabilityofDNAevidence.Itnoted
thatthenewRuleonDNAEvidence11allowstheconductof
DNA testing, whether at the courts instance or upon
application of any person who has legal interest in the
matterinlitigation.
_______________
8Rollo,p.64.
9PennedbyJudgeNancyRivasPalmones;id.,atpp.6569.
10Id.,atp.69.
11A.M.No.06115SC,October15,2007.
676

676

SUPREMECOURTREPORTSANNOTATED
Lucas vs. Lucas

Respondent filed a Motion for Reconsideration of Order

dated October 20, 2008 and for Dismissal of Petition,12
reiterating that (a) the petition was not in due form and
substance as no defendant was named in the title, and all
the basic allegations were hearsay; and (b) there was no
prima facie case, which made the petition susceptible to
dismissal.The RTC denied the motion in the Order dated
January19,2009,andrescheduledthehearing.13
Aggrieved,respondentfiledapetitionforcertiorariwith
theCA,questioningtheOrdersdatedOctober20,2008and
January19,2009.
OnSeptember25,2009,theCAdecidedthepetitionfor
certiorariinfavorofrespondent,thus:
WHEREFORE, the instant petition for certiorari is hereby
GRANTEDforbeingmeritorious.TheassailedOrdersdatedOctober
20, 2008 and January 19, 2009 both issued by the Regional Trial
Court, Branch 172 of Valenzuela City in SP. Proceeding Case No.
30V07 are REVERSED and SET ASIDE. Accordingly, the case
docketedasSP.ProceedingCaseNo.30V07isDISMISSED.14

The CA held that the RTC did not acquire jurisdiction

over the person of respondent, as no summons had been
served on him. Respondents special appearance could not
beconsideredasvoluntaryappearancebecauseitwasfiled
only for the purpose of questioning the jurisdiction of the
court over respondent. Although respondent likewise
questionedthecourtsjurisdictionoverthesubjectmatterof
the petition, the same is not equivalent to a waiver of his
righttoobjecttothejurisdictionofthecourtoverhisperson.
The CA remarked that petitioner filed the petition to
establish illegitimate filiation, specifically seeking a DNA
testing order to abbreviate the proceedings. It noted that
petitioner

_______________
12Rollo,p.161.
13Id.,atp.71.
14Id.,atp.46.
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Lucas vs. Lucas

failedtoshowthatthefoursignificantproceduralaspectsof
atraditionalpaternityactionhadbeenmet.TheCAfurther
held that a DNA testing should not be allowed when the
petitionerhasfailedtoestablishaprima faciecase,thus:
Whilethetenor[ofSection4,RuleonDNAEvidence]appearstobe
absolute,therulecouldnotreallyhavebeenintendedtotrampleon
thesubstantiverightsoftheparties.Itcouldhavenotmeanttobe
an instrument to promote disorder, harassment, or extortion. It
couldhavenotbeenintendedtolegalizeunwarrantedexpeditionto
fishforevidence.Suchwillbethesituationinthisparticularcaseif
acourtmayatanytimeorderthetakingofaDNAtest.IftheDNA
testincompulsoryrecognitioncasesisimmediatelyavailabletothe
petitioner/complainant without requiring first the presentation of
corroborativeproof,thenadireandabsurdrulewouldresult.Such
willencourageandpromoteharassmentandextortion.
xxxx
Attheriskofbeingrepetitious,theCourtwouldliketostressthat
it sees the danger of allowing an absolute DNA testing to a
compulsory recognition test even if the plaintiff/petitioner failed to
establishprima facie proof. x x x If at anytime, motu proprio and
without preconditions, the court can indeed order the taking of
DNA test in compulsory recognition cases, then the prominent and
welltodomembersofoursocietywillbeeasypreyforopportunists
andextortionists.Fornocauseatall,orevenfor[sic]casualsexual
indiscretions in their younger years could be used as a means to
harassthem.Unscrupulouswomen,unsureofthepaternityoftheir
childrenmayjustbetakingthechancesjustincasebypointingtoa
sexual partner in a long past onetime encounter. Indeed an
absolute and unconditional taking of DNA test for compulsory
recognitioncaseopenswidetheopportunitiesforextortionisttoprey
onvictimswhohavenostomachforscandal.15

Petitioner moved for reconsideration. On December 17,

2009,theCAdeniedthemotionforlackofmerit.16
_______________
15Id.,atpp.4546.
16Id.,atp.49.
678

678

SUPREMECOURTREPORTSANNOTATED
Lucas vs. Lucas

Inthispetitionforreviewoncertiorari,petitionerraises

thefollowingissues:
I.
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN
ITRESOLVEDTHEISSUEOFLACKOFJURISDICTIONOVER
THE PERSON OF HEREIN RESPONDENT ALBEIT THE SAME
WASNEVERRAISEDINTHEPETITIONFORCERTIORARI.
I.A
WHETHER OR NOT THE COURT OF APPEALS ERRED
WHEN IT RULED THAT JURISDICTION WAS NOT
ACQUIREDOVERTHEPERSONOFTHERESPONDENT.
I.B
WHETHER OR NOT THE COURT OF APPEALS ERRED
WHENITFAILEDTOREALIZETHATTHERESPONDENT
HAD ALREADY SUBMITTED VOLUNTARILY TO THE
JURISDICTIONOFTHECOURTA QUO.
I.C
WHETHER OR NOT THE COURT OF APPEALS ERRED
WHEN IT ESSENTIALLY RULED THAT THE TITLE OF A
PLEADING,
RATHER
THAN
ITS
BODY,
IS
CONTROLLING.
II.
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN
ITORDEREDTHEDISMISSALOFTHEPETITIONBYREASON
OF THE MOTION (FILED BY THE PETITIONER BEFORE THE
COURTA QUO)FORTHECONDUCTOFDNATESTING.
II.A
WHETHER OR NOT THE COURT OF APPEALS ERRED
WHEN IT ESSENTIALLY RULED THAT DNA TESTING
CAN ONLY BE ORDERED AFTER THE PETITIONER
ESTABLISHESPRIMAFACIEPROOFOFFILIATION.
III.
WHETHER OR NOT THE COURT OF APPEALS ERRED WITH
ITS MISPLACED RELIANCE ON THE CASE OF HERRERA VS.
ALBA,ESPECIALLYASREGARDSTHEFOURSIGNIFICANT
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Lucas vs. Lucas

PROCEDURAL ASPECTS OF A TRADITIONAL PATERNITY
ACTION.17

Petitionercontendsthatrespondentneverraisedasissue
in his petition for certiorari the courts lack of jurisdiction
overhisperson.Hence,theCAhadnolegalbasistodiscuss
the same, because issues not raised are deemed waived or
abandoned.Atanyrate,respondenthadalreadyvoluntarily
submittedtothejurisdictionofthetrialcourtbyhisfilingof
severalmotionsaskingforaffirmativerelief,suchasthe(a)
MotionforReconsiderationoftheOrderdatedSeptember3,
2007; (b) Ex Parte Motion to Resolve Motion for
ReconsiderationoftheOrderdatedNovember6,2007;and
(c) Motion for Reconsideration of the Order dated October
20,2008andforDismissalofPetition.Petitionerpointsout
thatrespondentevenexpresslyadmittedthathehaswaived
hisrighttosummonsinhisManifestationandCommenton
PetitionersVeryUrgentMotiontoTryandHeartheCase.

Hence,theissueisalreadymootandacademic.
Petitioner argues that the case was adversarial in
nature.Althoughthecaptionofthepetitiondoesnotstate
respondentsname,thebodyofthepetitionclearlyindicates
his name and his known address. He maintains that the
bodyofthepetitioniscontrollingandnotthecaption.
Finally, petitioner asserts that the motion for DNA
testing should not be a reason for the dismissal of the
petition since it is not a legal ground for the dismissal of
cases.IftheCAentertainedanydoubtastotheproprietyof
DNA testing, it should have simply denied the motion.18
Petitioner points out that Section 4 of the Rule on DNA
Evidencedoesnotrequirethattheremustbeapriorproofof
filiation before DNA testing can be ordered. He adds that
theCAerroneouslyreliedonthefoursignificantprocedural
aspectsofapaternitycase,as
_______________
17Id.,atpp.1617.
18Id.,atp.23.
680

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SUPREMECOURTREPORTSANNOTATED
Lucas vs. Lucas

enunciatedinHerrera v. Alba.19Petitioneraversthatthese
procedural aspects are not applicable at this point of the
proceedings because they are matters of evidence that
shouldbetakenupduringthetrial.20
InhisComment,respondentsupportstheCAsrulingon
mostissuesraisedinthepetitionforcertiorari and merely
reiterateshispreviousarguments.However,ontheissueof
lack of jurisdiction, respondent counters that, contrary to
petitioners assertion, he raised the issue before the CA in
relation to his claim that the petition was not in due form
andsubstance.Respondentdeniesthathewaivedhisright
totheserviceofsummons.Heinsiststhattheallegedwaiver
and voluntary appearance was conditional upon a finding
bythecourtthatsummonsisindeedrequired.Heaversthat
the assertion of affirmative defenses, aside from lack of
jurisdiction over the person of the defendant, cannot be
considered as waiver of the defense of lack of jurisdiction
oversuchperson.
Thepetitionismeritorious.
Primarily,weemphasizethattheassailedOrdersofthe
trial court were orders denying respondents motion to
dismiss the petition for illegitimate filiation. An order
denyingamotiontodismissisaninterlocutoryorderwhich
neitherterminatesnorfinallydisposesofacase,asitleaves
somethingtobedonebythecourtbeforethecaseisfinally
decidedonthemerits.Assuch,thegeneralruleisthatthe
denial of a motion to dismiss cannot be questioned in a
specialcivilactionforcertiorari,whichisaremedydesigned
tocorrecterrorsofjurisdictionandnoterrorsofjudgment.
Neithercanadenialofamotiontodismissbethesubjectof
an appeal unless and until a final judgment or order is

rendered. In a number of cases, the court has granted the

extraordinary remedy of certiorari on the denial of the
motion to dismiss but only when it has been tainted with
graveabuseofdiscretion
_______________
19Supranote7.
20Rollo,p.30.
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Lucas vs. Lucas

amountingtolackorexcessofjurisdiction.21Inthepresent
case,wediscernnograveabuseofdiscretiononthepartof
thetrialcourtindenyingthemotiontodismiss.
The grounds for dismissal relied upon by respondent
were(a)thecourtslackofjurisdictionoverhispersondueto
the absence of summons, and (b) defect in the form and
substance of the petition to establish illegitimate filiation,
whichisequivalenttofailuretostateacauseofaction.
We need not belabor the issues on whether lack of
jurisdiction was raised before the CA, whether the court
acquired jurisdiction over the person of respondent, or
whether respondent waived his right to the service of
summons.Wefindthattheprimordialissuehereisactually
whether it was necessary, in the first place, to serve
summonsonrespondentforthecourttoacquirejurisdiction
over the case. In other words, was the service of summons
jurisdictional?Theanswertothisquestiondependsonthe
natureofpetitionersaction,thatis,whetheritisanaction
in personam, in rem, or quasi in rem.
Anactionin personamislodgedagainstapersonbased
onpersonalliability;anactionin remisdirectedagainstthe
thing itself instead of the person; while an action quasi in
remnamesapersonasdefendant,butitsobjectistosubject
thatpersonsinterestinapropertytoacorrespondinglien
orobligation.Apetitiondirectedagainstthethingitselfor
theres,whichconcernsthestatusofaperson,likeapetition
foradoption,annulmentofmarriage,orcorrectionofentries
inthebirthcertificate,isanactionin rem.22
Inanaction in personam,jurisdictionoverthepersonof
the defendant is necessary for the court to validly try and
decide the case. In a proceeding in rem or quasi in rem,
jurisdiction over the person of the defendant is not a
prerequisite
_______________
21Lu Ym v. Nabua,492Phil.397,404;452SCRA298,306(2005).
22 Alba v. Court of Appeals, 503 Phil. 451, 458459; 465 SCRA 495,
505(2005).
682

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SUPREMECOURTREPORTSANNOTATED

Lucas vs. Lucas

to confer jurisdiction on the court, provided that the latter
has jurisdiction over the res. Jurisdiction over the res is
acquiredeither(a)bytheseizureofthepropertyunderlegal
process,wherebyitisbroughtintoactualcustodyofthelaw,
or (b) as a result of the institution of legal proceedings, in
which the power of the court is recognized and made
effective.23
Thehereinpetitiontoestablishillegitimatefiliationisan
actionin rem.Bythesimplefilingofthepetitiontoestablish
illegitimate filiation before the RTC, which undoubtedly
hadjurisdictionoverthesubjectmatterofthepetition,the
lattertherebyacquiredjurisdictionoverthecase.Anin rem
proceeding is validated essentially through publication.
Publicationisnoticetothewholeworldthattheproceeding
hasforitsobjecttobarindefinitelyallwhomightbeminded
to make an objection of any sort to the right sought to be
established.24 Through publication, all interested parties
aredeemednotifiedofthepetition.
If at all, service of summons or notice is made to the
defendant,itisnotforthepurposeofvestingthecourtwith
jurisdiction, but merely for satisfying the due process
requirements.25 This is but proper in order to afford the
personconcernedtheopportunitytoprotecthisinterestifhe
so chooses.26 Hence, failure to serve summons will not
deprive the court of its jurisdiction to try and decide the
case. In such a case, the lack of summons may be excused
whereitisdeterminedthattheadversepartyhad,infact,
theopportunitytofilehisopposition,asinthiscase.Wefind
thatthedueprocessrequirementwithrespecttorespondent
has been satisfied, considering that he has participated in
theproceed
_______________
23Id.,atp.459;p.505.
24Barco v. Court of Appeals,465Phil.39,57;420SCRA162,173174
(2004).
25Alba v. Court of Appeals, supranote22,atp.459;pp.505506.
26Ceruila v. Delantar,513Phil.237,252;477SCRA134,148(2005).
683

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Lucas vs. Lucas

ings in this case and he has the opportunity to file his
oppositiontothepetitiontoestablishfiliation.
To address respondents contention that the petition
shouldhavebeenadversarialinform,wefurtherholdthat
the herein petition to establish filiation was sufficient in
form.Itwasindeedadversarialinnaturedespiteitscaption
whichlackedthenameofadefendant,thefailuretoimplead
respondent as defendant, and the nonservice of summons
upon respondent. A proceeding is adversarial where the
party seeking relief has given legal warning to the other
partyandaffordedthelatteranopportunitytocontestit.27

In this petitionclassified as an action in remthe notice

requirement for an adversarial proceeding was likewise
satisfiedbythepublicationofthepetitionandthegivingof
noticetotheSolicitorGeneral,asdirectedbythetrialcourt.
The petition to establish filiation is sufficient in
substance. It satisfies Section 1, Rule 8 of the Rules of
Court, which requires the complaint to contain a plain,
concise, and direct statement of the ultimate facts upon
which the plaintiff bases his claim. A fact is essential if it
cannotbestrickenoutwithoutleavingthestatementofthe
causeofactioninadequate.28Acomplaintstatesacauseof
actionwhenitcontainsthefollowingelements:(1)thelegal
right of plaintiff, (2) the correlative obligation of the
defendant, and (3) the act or omission of the defendant in
violationofsaidlegalright.29
The petition sufficiently states the ultimate facts relied
upon by petitioner to establish his filiation to respondent.
Respondent, however, contends that the allegations in the
petition were hearsay as they were not of petitioners
personal
_______________
27Republic v. Capote,G.R.No.157043,February2,2007,514SCRA
76,85.
28 Ceroferr Realty Corporation v. Court of Appeals, 426 Phil. 522,
528;376SCRA144,148(2002).
29 Spouses Diaz v. Diaz, 387 Phil. 314, 329; 331 SCRA 302, 315
(2000).
684

684

SUPREMECOURTREPORTSANNOTATED
Lucas vs. Lucas

knowledge.Suchmatterisclearlyamatterofevidencethat
cannotbedeterminedatthispointbutonlyduringthetrial
whenpetitionerpresentshisevidence.
Inamotiontodismissacomplaintbasedonlackofcause
of action, the question submitted to the court for
determination is the sufficiency of the allegations made in
the complaint to constitute a cause of action and not
whether those allegations of fact are true, for said motion
musthypotheticallyadmitthetruthofthefactsallegedin
thecomplaint.30Theinquiryisconfinedtothefourcorners
ofthecomplaint,andnoother.31Thetestofthesufficiency
of the facts alleged in the complaint is whether or not,
admitting the facts alleged, the court could render a valid
judgment upon the same in accordance with the prayer of
thecomplaint.32
Iftheallegationsofthecomplaintaresufficientinform
and substance but their veracity and correctness are
assailed,itisincumbentuponthecourttodenythemotion
to dismiss and require the defendant to answer and go to
trial to prove his defense. The veracity of the assertions of
thepartiescanbeascertainedatthetrialofthecaseonthe
merits.33
The statement in Herrera v. Alba34 that there are four

significantproceduralaspectsinatraditionalpaternitycase
which parties have to face has been widely misunderstood
andmisappliedinthiscase.Apartyisconfrontedbythese
socalled procedural aspects during trial, when the parties
havepresentedtheirrespectiveevidence.Theyarematters
ofevidencethatcannotbedeterminedatthisinitialstageof
theproceedings,whenonlythepetitiontoestablishfiliation
hasbeenfiled.TheCAsobservationthatpetitionerfailedto
es
_______________
30 Balo v. Court of Appeals, 508 Phil. 224, 231; 471 SCRA 227, 236
(2005).
31Id.
32Id.
33Id.
34Supranote7.
685

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685

Lucas vs. Lucas

tablishaprima facie casethe first procedural aspect in a
paternitycaseisthereforemisplaced.Aprima faciecaseis
built by a partys evidence and not by mere allegations in
theinitiatorypleading.
Clearly then, it was also not the opportune time to
discussthelackofaprima faciecasevisvisthemotionfor
DNA testing since no evidence has, as yet, been presented
by petitioner. More essentially, it is premature to discuss
whether, under the circumstances, a DNA testing order is
warranted considering that no such order has yet been
issuedbythetrialcourt.Infact,thelatterhasjustsetthe
saidcaseforhearing.
Atanyrate,theCAsviewthatitwouldbedangerousto
allow a DNA testing without corroborative proof is well
taken and deserves the Courts attention. In light of this
observation,wefindthatthereisaneedtosupplementthe
Rule on DNA Evidence to aid the courts in resolving
motionsforDNAtestingorder,particularlyinpaternityand
other filiation cases. We, thus, address the question of
whetheraprima facie showing is necessary before a court
canissueaDNAtestingorder.
The Rule on DNA Evidence was enacted to guide the
Bench and the Bar for the introduction and use of DNA
evidenceinthejudicialsystem.Itprovidestheprescribed
parameters on the requisite elements for reliability and
validity (i.e., the proper procedures, protocols, necessary
laboratory reports, etc.), the possible sources of error, the
availableobjectionstotheadmissionofDNAtestresultsas
evidenceaswellastheprobativevalueofDNAevidence.It
seekstoensurethattheevidencegathered,usingvarious
methods of DNA analysis, is utilized effectively and
properly, [and] shall not be misused and/or abused and,
more importantly, shall continue to ensure that DNA
analysis serves justice and protects, rather than prejudice

thepublic.35
_______________
35RationaleoftheRuleonDNAEvidence.
686

686

SUPREMECOURTREPORTSANNOTATED
Lucas vs. Lucas

Notsurprisingly,Section4oftheRuleonDNAEvidence
merelyprovidesforconditionsthatareaimedtosafeguard
the accuracy and integrity of the DNA testing. Section 4
states:
SEC.4.Application for DNA Testing Order.The appropriate
court may, at any time, either motu proprio or on application of any
personwhohasalegalinterestinthematterinlitigation,orderaDNA
testing. Such order shall issue after due hearing and notice to the
partiesuponashowingofthefollowing:
(a)Abiologicalsampleexiststhatisrelevanttothecase;
(b)The biological sample: (i) was not previously subjected to the
type of DNA testing now requested; or (ii) was previously
subjected to DNA testing, but the results may require
confirmationforgoodreasons;
(c)TheDNAtestingusesascientificallyvalidtechnique;
(d)The DNA testing has the scientific potential to produce new
informationthatisrelevanttotheproperresolutionofthecase;
and
(e)The existence of other factors, if any, which the court may
consider as potentially affecting the accuracy or integrity of the
DNAtesting.
ThisRuleshallnotprecludeaDNAtesting,withoutneedofaprior
court order, at the behest of any party, including law enforcement
agencies,beforeasuitorproceedingiscommenced.

Thisdoesnotmean,however,thataDNAtestingorder
willbeissuedasamatterofrightif,duringthehearing,the
saidconditionsareestablished.
In some states, to warrant the issuance of the DNA
testingorder,theremustbeashowcausehearingwherein
the applicant must first present sufficient evidence to
establish a prima facie case or a reasonable possibility of
paternity or good cause for the holding of the test.36 In
thesestates,a
_______________
36State ex rel. Department of Justice and Division of Child Support
v. Spring,201Or.App.367,120P.3d1(2005);State v.
687

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Lucas vs. Lucas

courtorderforbloodtestingisconsideredasearch,which,

undertheirConstitutions(asinours),mustbeprecededby
afindingofprobablecauseinordertobevalid.Hence,the
requirementofaprima faciecase,orreasonablepossibility,
wasimposedincivilactionsasacounterpartofafindingof
probablecause.TheSupremeCourtofLouisianaeloquently
explained
Althoughapaternityactioniscivil,notcriminal,theconstitutional
prohibition against unreasonable searches and seizures is still
applicable,andapropershowingofsufficientjustificationunderthe
particular factual circumstances of the case must be made before a
court may order a compulsory blood test. Courts in various
jurisdictions have differed regarding the kind of procedures which
are required, but those jurisdictions have almost universally found
that a preliminary showing must be made before a court can
constitutionally order compulsory blood testing in paternity cases.
We agree, and find that, as a preliminary matter, before the court
may issue an order for compulsory blood testing, the moving party
must show that there is a reasonable possibility of paternity. As
explained hereafter, in cases in which paternity is contested and a
party to the action refuses to voluntarily undergo a blood test, a
showcausehearingmustbeheldinwhichthecourtcandetermine
whether there is sufficient evidence to establish a prima facie case
whichwarrantsissuanceofacourtorderforbloodtesting.37

The same condition precedent should be applied in our

jurisdiction to protect the putative father from mere
harassment suits. Thus, during the hearing on the motion
for DNA testing, the petitioner must present prima facie
evidenceorestablishareasonablepossibilityofpaternity.
_______________
Shaddinger, 702 So.2d 965, (1998); State in the Interest of A.N.V. v.
McCain, 637 So.2d 650 (1994); In the Interest of J.M., 590 So.2d 565
(1991); Schenectady County Department of Social Services on Behalf of
Maureen E. v. Robert J, 126 A.D. 2d 786, 510 N.Y.S. 2d 289 (1987);
State ex rel. McGuire v. Howe,44Wash.App.559,723P.2d452(1986).
37In the Interest of J.M., supra,atp.568.
688

688

SUPREMECOURTREPORTSANNOTATED
Lucas vs. Lucas

Notwithstanding these, it should be stressed that the

issuanceofaDNAtestingorderremainsdiscretionaryupon
the court. The court may, for example, consider whether
there is absolute necessity for the DNA testing. If there is
already preponderance of evidence to establish paternity
and the DNA test result would only be corroborative, the
courtmay,initsdiscretion,disallowaDNAtesting.
WHEREFORE, premises considered, the petition is
GRANTED.TheCourtofAppealsDecisiondatedSeptember
25, 2009 and Resolution dated December 17, 2009 are
REVERSED and SET ASIDE. The Orders dated October
20,2008andJanuary19,2009oftheRegionalTrialCourt
ofValenzuelaCityareAFFIRMED.

SOORDERED.
Carpio (Chairperson), Peralta, Abad and Mendoza, JJ.,
concur.
Petition granted, judgment and resolution reversed and
set aside.
Notes.Lack of knowledge of the existence of DNA
testingspeaksofnegligence,eitheronthepartoftheclient,
or on the part of his counsel. (In Re: The Writ of Habeas
Corpus for Reynaldo de Villa,442SCRA706[2004])
For too long, illegitimate children have been
marginalizedbyfatherswhochoosetodenytheirexistence.
The growing sophistication of DNA testing technology
finallyprovidesamuchneededequalizerforsuchostracized
and abandoned progeny. DNA testing is a valid means of
determining paternity. (Agustin vs. Court of Appeals, 460
SCRA315[2005])
o0o

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