G.R. No. L-18583. January 31, 1964.
VICENTE D. SARMIENTO, as Judicial Administrator of the Intestate Estate of LORENZO C. ATEGA, petitioner, vs. THE HON. MONTANO A. ORTIZ, Judge of the Court of First Instance of Agusan, WILLIAM LASAM, MARCIANA E. LASAM and the PHILIPPINE NATIONAL BANK, respondents.

FACTS

Lorenzo C. Atega filed a verified complaint seeking the annulment of Original Certificate of Title No. RO-99 (N.A.) over a parcel of land, and a notice of lis pendens was annotated on the title. Atega died on January 25, 1960. His counsel informed the court of his death on February 24, 1960, explaining he did not yet know the identity of the legal heirs or administrator and would inform the court as soon as he received the necessary information. On March 5, 1960, the court issued an order requiring counsel to file an amended complaint substituting the parties, but counsel denied receiving this order.
On June 20, 1960, respondents William and Marciana Lasam filed an urgent ex-parte motion for cancellation of the notice of lis pendens, which the respondent judge granted on June 22, 1960. Vicente D. Sarmiento, later appointed judicial administrator of Atega’s estate and substituted as plaintiff, moved to set aside the cancellation order, but his motion and subsequent reconsideration were denied.

ISSUE

Whether the respondent judge committed grave abuse of discretion in ordering the cancellation of the notice of lis pendens.

RULING

Yes, the respondent judge acted with grave abuse of discretion. The cancellation was improperly granted. While a trial court has discretionary power to cancel a notice of lis pendens under peculiar circumstances—such as when the plaintiff unnecessarily delays the case to the prejudice of the owner—no such delay was attributable to the petitioner or his counsel here. Counsel’s notification to the court of the client’s death and his statement that he would relay information about the heirs constituted substantial compliance with his duty under the rules.
The court’s March 5, 1960 order directing counsel to file an amended complaint was ineffectual. Counsel claimed non-receipt, which was not disproven, and more critically, he could not legally comply at that time as he did not yet represent the heirs or an administrator. The proper procedure was for the court to either wait for counsel’s information or order the naming of heirs for substitution, or require the opposing party to procure the appointment of a legal representative. The ex-parte cancellation, without notifying the deceased plaintiff’s counsel, was unduly precipitated. The respondent bank’s claim of a preferred mortgage lien is a matter for resolution in the main case and does not justify the cancellation. The order of cancellation is annulled.