Oshita vs. Republic Case Digest G.R. No. 21180 March 31, 1967 ; 19 SCRA 700

Oshita vs. Republic Case Digest 

G.R. No. 21180 ; March 31, 1967 ; 19 SCRA 700

PRINCIPLE/S:

Special Proceedings

a) A person can use the surname of his/her mother

General Rule: Legitimate children shall principally use the surname of the father. (Article 364 of the Civil Code)

Exception: Legitimate children have the right to bear the surname of the mother if there is sufficient reason (Article 264 of the Civil Code)

*Note: Article 264 of the Civil Code has been amended by the Family Code which provides:

Art. 174. Legitimate children shall have the right:

(1) To bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on Surnames;

(2) To receive support from their parents, their ascendants, and in proper cases, their brothers and sisters, in conformity with the provisions of this Code on Support; and

(3) To be entitled to the legitimate and other successional rights granted to them by the Civil Code. (264a)

Remedial Law

a) Lack of verification not a ground for dismissal.

- The absence of verification a mere formal, not jurisdictional, defect.

- No provision exists in the rules which declares that such a requirement regarding verification is jurisdictional. As such, non-compliance of which does not necessarily render the pleading fatally defective

- Purpose of verification is to assure that what are alleged in the pleading are true and correct and not the product of the imagination or a matter of speculation, and that the pleading is filed in good faith.

FACTS: Oshita filed with the Court of First Instance a petition to have her name changed from "Antonina B. Oshita" to "Antonina Bartolome". The OSG filed led a motion to dismiss the petition upon the grounds, among other, of lack of jurisdiction since the petition was not verified in accordance with the provisions of Section 6, Rule 15 of the Rules of Court although it was subscribed and sworn to by petitioner. The RTC granted Oshita’s petition. The OSG now appeals the decision of the Court of First Instance to SC based in the same ground.

ISSUE/S:

1) WON Oshita can use the surname of her mother.

2) WON Lack of verification is a ground for dismissal.

HELD:

1) YES. It is true that Article 364 of the Civil Code provides that legitimate children shall principally use the surname of the father. But this rule is not absolute. Article 264 of the Civil Code provides that legitimate children have the right to bear the surname of the father and of the mother. Hence, if there is sufficient reason, the change of a child's surname from that of the father, to that of the mother, may be authorized by the court.

In the instant case, it has been shown that Oshita is the legitimate daughter of Buena Bartolome and Hishimatsu Oshita; that upon reaching the age of majority she elected Philippine citizenship and took her oath of allegiance; that being already a Filipino citizen she desires to adopt a Filipino surname; that her older brother and sister who had also elected Philippine citizenship have been using the surname "Bartolome"; and that she desires to have the surname "Bartolome" instead of "Oshita", because she felt embarrassed when introduced as one bearing Japanese surname.

2) NO. There is no provision that exists in the rules which declares that such a requirement regarding verification is jurisdictional. Absence of verification a mere formal, not jurisdictional, defect. The non-compliance of the verification requirement does not necessarily render the pleading fatally defective. Hence, the court may order the correction of the pleading if the verification is lacking, or act on the pleading although it is not verified if the attending circumstances are such that the strict compliance with the rule may be dispensed with in order that the ends of justice or the law may thereby be served. This view finds support in the ruling laid down by this Court in several decisions.

In relation to the present case, while the petition was not verified, it was, however, subscribed and sworn to by the petitioner, and We believe that the lower court did not commit a reversible error when it denied the motion to dismiss the petition upon the ground of lack of jurisdiction. The jurisdiction of the court was not affected by the absence of the proper verification of the petition.