27. LAPUZ SY VS. EUFEMIO - G.R No L-30977 CARMEN LAPUZ SY represented by her substitute MACARIO LAPUZ petitioner-appellant vs EUFEMIO S EUFEMIO alias

27. LAPUZ SY VS. EUFEMIO - G.R No L-30977 CARMEN LAPUZ SY...

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G.R. No. L-30977 January 31, 1972CARMEN LAPUZ SY, represented by her substitute MACARIO LAPUZ, petitioner-appellant, vs.EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee.Jose W. Diokno for petitioner-appellant.D. G. Eufemio for respondent-appellee.REYES J.B.L., J.:pPetition, filed after the effectivity of Republic Act 5440, for review bycertiorariof an order, dated 29 July 1969, of the Juvenile and DomesticRelations Court of Manila, in its Civil Case No. 20387, dismissing said casefor legal separation on the ground that the death of the therein plaintiff,Carmen O. Lapuz Sy, which occurred during the pendency of the case,abated the cause of action as well as the action itself. The dismissal orderwas issued over the objection of Macario Lapuz, the heir of the deceasedplaintiff (and petitioner herein) who sought to substitute the deceased andto have the case prosecuted to final judgment.On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separationagainst Eufemio S. Eufemio, alleging, in the main, that they were marriedcivilly on 21 September 1934 and canonically on 30 September 1934; thatthey had lived together as husband and wife continuously until 1943 whenher husband abandoned her; that they had no child; that they acquiredproperties during their marriage; and that she discovered her husbandcohabiting with a Chinese woman named Go Hiok at 1319 Sisa Street,Manila, on or about March 1949. She prayed for the issuance of a decree oflegal separation, which, among others, would order that the defendantEufemio S. Eufemio should be deprived of his share of the conjugalpartnership profits.In his second amended answer to the petition, herein respondent Eufemio S.Eufemio alleged affirmative and special defenses, and, along with severalother claims involving money and other properties, counter-claimed for thedeclaration of nullity ab initioof his marriage with Carmen O. Lapuz Sy, onthe ground of his prior and subsisting marriage, celebrated according toChinese law and customs, with one Go Hiok, alias Ngo Hiok.Issues having been joined, trial proceeded and the parties adduced theirrespective evidence. But before the trial could be completed (therespondent was already scheduled to present surrebuttal evidence on 9 and18 June 1969), petitioner Carmen O. Lapuz Sy died in a vehicular accidenton 31 May 1969. Counsel for petitioner duly notified the court of her death.On 9 June 1969, respondent Eufemio moved to dismiss the "petition forlegal separation"1on two (2) grounds, namely: that the petition for legalseparation was filed beyond the one-year period provided for in Article 102 of theCivil Code; and that the death of Carmen abated the action for legal separation.
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On 26 June 1969, counsel for deceased petitioner moved to substitute thedeceased Carmen by her father, Macario Lapuz. Counsel for Eufemioopposed the motion.
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