"Actio in personam is a personal action seeking redress against a particular person. Personal actions are such whereby a man claims a debt, or personal duty, or damages in lieu thereof

The pivot of inquiry here is: Whether or not the case at bar has survived the death of the private respondent, Pedro V. Garcia.

It is petitioners' theory that the action they brought below was, among others, for the enforcement of their charging lien in Civil Case Nos. 14297 and 17713, and Civil Case No. Pq-6596; which involved a claim over the real properties litigated upon, and therefore, an action which survived the death of their client, Pedro V. Garcia.

Sec. 21, Rule 3 of the Rules of Court ⁷ provides:

Where claims does not survive — When the action is for recovery of money, debt or interest thereon, and the defendant dies before final judgment in the Court of First instance, it shall be dismissed to be prosecuted in the manner especially provided in this rules.

To begin with, the aforequoted provision of law was modified by the enactment of the 1997 Civil Procedure, Section 20, Rule 3 of which, reads:

When the action is for recovery of money arising from contract, express or implied, and the defendant dies before final entry of final judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall be allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a deceased person.

It is a fundamental rule in legal hermeneutics that "statutes regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at the time of the passage," ⁸ Considering that the case under scrutiny was passed upon by the lower courts under the old rule, it follows that the old rule governs.

Under the plain language of Section 21, Rule 3 of B.P. 129 it is beyond cavil that "if the defendant dies before the Court of First Instance or the Regional Trial Court has rendered a judgment, the action is dismissed and the plaintiff is required to file a money claim against the estate of the deceased. But if the defendant dies after the said court has rendered a judgment and pending appeal, the action is not dismissed and the deceased defendant is substituted by his executor or administrator or legal heirs." ⁹

To determine whether the action survives or not, the Court ruling in Bonilla vs. Barcena (71 SCRA 491), comes to the fore, thus:

The question as to whether an action survives or not depends on the nature of the action and the damage sued for (Iron Gate Bank vs. Brady, 184 U.S. 665, 22 SCT, 46 L.ed 739). In the cause of action which survive, the wrong complained affects primarily and principally property and property rights, the injuries to the person being merely incidental, while in the causes of action which do not survive, the injury complained of is to the person, the property end rights of property effected being incidental . . ..

The core of petitioners' argument is that action should not be dismissed since their complaint involves not just monetary claim but also real properties as well.

Petitioners' contention is untenable. While they maintain that what they are claiming include real properties, their Complaint is captioned as "For Collection of Money and for Specific Performance." Obviously, the petitioners themselves, who are lawyers, believed that the cause of action against the private respondent was in the nature of actio in personam.

"Actio in personam is a personal action seeking redress against a particular person. Personal actions are such whereby a man claims a debt, or personal duty, or damages in lieu thereof." ¹⁰ In the present case petitioners seek to recover attorney's fees from private respondent for the professional services they rendered to the latter. Attorney's fee is basically a compensation. ¹¹ In its ordinary sense, "the term (compensation) applies not only to salaries, but to compensation by fees for specific services." ¹²

Viewed in proper perspective, an action to recover attorney's fees is basically a monetary claim, which under Section 21, Rule 3 of B.P. 129 is an action that does not survive. Such is the fate of Civil Case No. 6465.

Petitioners theorize that the inclusion of real properties as part of the attorney's fees private respondent owe them, converted the action into one that survives or at the very least, split the action into one that did not survive, with respect to the monetary obligation, and which survived, with respect to the real properties of the deceased.

In Harden vs. Harden, 20 SCRA 706, the Court ruled that an action for the satisfaction of attorney's fees is founded on a personal obligation which does not survive the death of the defendant before adjudication. ¹³

As enunciated in Bonilla, the litmus test in determining what action survives and what does not depends on the nature of the action and not on the object or kind of property sought to be recovered.

THIRD DIVISION

G.R. No. 116909 February 25, 1999

VIVENCIO M. RUIZ, EMILIO D. CASTELLANES and BLAS A. MIRANDA, petitioners,
vs.
THE COURT OF APPEALS, PEDRO V, GARCIA as presented by his legal representative, MA. LUISA G. MAGPAYO, respondents.