Philippine Supreme Court Jurisprudence


Philippine Supreme Court Jurisprudence > Year 1955 > November 1955 Decisions > G.R. No. L-8088 November 29, 1955 - ROSITA VELOSO DE OLAYVAR v. ARISTOTELES OLAYVAR

098 Phil 52:




PHILIPPINE SUPREME COURT DECISIONS

FIRST DIVISION

[G.R. No. L-8088. November 29, 1955.]

ROSITA VELOSO DE OLAYVAR, Plaintiff-Appellant, v. ARISTOTELES OLAYVAR, Defendant-Appellee.

Marcelino R. Veloso for Appellant.

Ramon E. Benitez for Appellee.


SYLLABUS


PLEADING AND PRACTICE; ACTION FOR SUPPORT; DISMISSAL UNDER RULE 8, SECTION 1 (d); REQUISITES. — The present action for support is predicated on the infidelity of defendant who because of his propensity towards other women made him neglectful of his marital duties. The case of legal separation, on the other hand, asserts adultery on the part of plaintiff which is a valid defense against an action for support (Quintana v. Lerma, 24 Phil., 285). The new Civil Code provides that the obligation to give support shall cease "when the recipient, be a forced heir or not, has committed some act which gives rise to disinheritance" [Article 303 (4)], and under Article 921 of the same Code, it shall be sufficient cause for disinheritance "when the spouse has given cause for legal separation." It further appears that in the separation case the wife interposed an answer wherein, repudiating the charge of adultery she demanded that she and her children be given the proper maintenance and support to which they are entitled under the law. All of the foregoing show that the two cases raise practically the same issues. There is therefore no need of prosecuting them separately and independently for that would amount to duplicity of action. And as it appears that the case of legal separation was instituted earlier than the one for support, it is fair that the latter be dismissed as was correctly done by the lower court.


D E C I S I O N


BAUTISTA ANGELO, J.:


Plaintiff instituted this action in the Court of First Instance of Leyte praying that support be given her and her four children coupled with a petition for support pendente lite.

Defendant in his answer set up as special defense that in the Court of First Instance of Cebu there is a case for legal separation pending between the same parties on the ground of adultery wherein the right of plaintiff to demand support is incidentally involved (Civil Code No. R-3196). This separation case was instituted earlier than the present one.

In view of the pendency of the separation case in Cebu, the court deemed it proper to hold in abeyance further action on the case for support for the reason that the case in Cebu "should have priority in order to ascertain the rights of the parties with particular reference to support in favor of the plaintiff." The court however modified later this ruling on the premise that, as the legal separation case might take a long time before it is finally disposed of, it is imperative that the matter of support be given preferential consideration.

Defendant moved to have this ruling reconsidered, and having failed in this attempt, he filed a motion to dismiss predicated on the same plea that there is between the same parties a case for legal separation in the Court of First Instance of Cebu invoking in his favor the rule that a complaint may be dismissed where "there is another action pending between the same parties for the same cause." [Rule 8, section 1(d)] And on March 24, 1954, the court entered an order dismissing the case in line with the plea of the defendant. This is the order subject of the present appeal.

In order that an action may be dismissed on the ground that "there is another action pending between the same parties for the same cause" [Rule 8, section 1 (d)], the following requisites must concur: (1) identity of parties, or at least such as representing the same interests in both actions; (2) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (3) the identity in the two cases should be such that the judgment that may be rendered in one would, regardless of which party is successful, amount to res adjudicata in the other. 1 (Moran, Comments on the Rules of Court, 1952 ed., Vol. I, p. 169.) Do these requisites concur in the two cases under consideration?

An analysis of the facts deducible from the pleadings would reveal an affirmative answer. Note that the present action is for support not only of plaintiff but of her children. The action is predicated on the infidelity of defendant who because of his propensity towards other women made him neglectful of his marital duties. The case of legal separation, on the other hand, asserts adultery on the part of plaintiff which is a valid defense against an action for support (Quintana v. Lerma, 24 Phil., 285). Our new Civil Code provides that the obligation to give support shall cease "when the recipient, be he a forced heir or not, has committed some act which gives rise to disinheritance" [Article 303 (4)], and under Article 921 of the same Code, it shall be sufficient cause for disinheritance "when the spouse has given cause for legal separation." It further appears that in the separation case the wife interposed an answer wherein, repudiating the charge of adultery, she demanded that she and her children be given the proper maintenance and support to which they are entitled under the law.

All of the foregoing show that the two cases raise practically the same issues. There is therefore no need of prosecuting them separately and independently for that would amount to duplicity of action. And as it appears that the case of legal separation was instituted earlier than the one for support, it is fair that the latter be dismissed as was correctly done by the lower court.

The order appealed from is affirmed, without pronouncement as to costs.

Paras, C.J., Bengzon, Padilla, Reyes, A., Jugo, Labrador, Concepcion and Reyes, J. B. L., JJ., concur.

Endnotes:



1. This ruling finds support in the following cases: Tambunting v. De Leon, L-2184, August 11, 1950; Manuel v. Wigett, 14 Phil., 9; Hongkong & Shanghai Banking Corp. v. Ibañez de Aldecoa & Palet Co., 30 Phil., 255. See also Viuda de Hernandez v. Jison, 40 Off. Gaz., 3646, 74 Phil., 72; J. Northcott & Co. v. Villa-Abrille, 41 Phil., 462; Santos v. Tierra, Et Al., 89 Phil., 715; Capati v. Ballesteros, 47 Off. Gaz., 5127.




Back to Home | Back to Main


chanrobles.com



ChanRobles On-Line Bar Review

ChanRobles Internet Bar Review : www.chanroblesbar.com





November-1955 Jurisprudence                 

  • G.R. No. L-6476 November 18, 1955 - FRANCISCO DE BORJA v. BIENVENIDO A. TAN, ET AL.

    097 Phil 872

  • G.R. No. L-7745 November 18, 1955 - CANDIDA SEVILLA, ET AL. v. CONCORDIA DE LOS ANGELES

    097 Phil 875

  • G.R. No. L-8030 November 18, 1955 - PEOPLE OF THE PHIL. v. ABRAHAM JARAMILLA

    097 Phil 880

  • G.R. No. L-8034 November 18, 1955 - CORNELIA A. DE GILLACO, ET AL. v. MANILA RAILROAD CO.

    097 Phil 884

  • G.R. No. L-5949 November 19, 1955 - TANG HO, ET AL. v. BOARD OF TAX APPEALS, ET AL.

    097 Phil 889

  • G.R. No. L-8543 November 22, 1955 - CLARO MESIAS v. CITY MAYOR DOMINADOR J. JOVER, ET AL.

    097 Phil 899

  • G.R. Nos. L-7742-43 November 23, 1955 - QUEZON INSTITUTE v. CELSO A. VELASCO, ET AL.

    097 Phil 905

  • G.R. No. L-7855 November 23, 1955 - LEONIDES S. ASUNCION, ET AL. v. CELESTINO DE LA CRUZ

    097 Phil 910

  • G.R. No. L-7785 November 25, 1955 - CHANG YUNG FA, ET AL. v. HON. ROBERTO A. GIANZON, ET AL.

    097 Phil 913

  • G.R. No. L-7667 November 28, 1955 - CHERIE PALILEO v. BEATRIZ COSIO

    097 Phil 919

  • G.R. No. L-8229 November 28, 1955 - PEOPLE OF THE PHIL. v. WILLIAM J. POMEROY, ET AL.

    097 Phil 927

  • G.R. No. L-9181 November 28, 1955 - PEOPLE OF THE PHIL. v. HON. NICASIO YATCO, ET AL.

    097 Phil 940

  • G.R. No. L-5746 November 29, 1955 - PEOPLE OF THE PHIL. v. JUAN JUMAUAN

    098 Phil 1

  • G.R. No. L-6989 November 29, 1955 - PEOPLE OF THE PHIL. v. AGAPITO LINGAD Y SANTOS

    098 Phil 5

  • G.R. No. L-7033 November 29, 1955 - CHUNG BEN v. CO BUN KIM

    098 Phil 13

  • G.R. No. L-7228 November 29, 1955 - TALISAY-SILAY MILLING CO. v. COURT OF INDUSTRIAL RELATIONS

    098 Phil 17

  • G.R. Nos. L-7323-24 November 29, 1955 - CELEDONIO SANTOS v. COURT OF INDUSTRIAL RELATIONS

    098 Phil 23

  • G.R. No. L-7747 November 29, 1955 - NIEVES TINIO v. GREGORIO FRANCES

    098 Phil 32

  • G.R. No. L-7766 November 29, 1955 - PAZ NERI SAN JOSE v. REHABILITATION FINANCE CORPORATION

    098 Phil 38

  • G.R. No. L-7929 November 29, 1955 - PEOPLE OF THE PHIL. v. PEDRO GAITE

    098 Phil 41

  • G.R. No. L-8024 November 29, 1955 - EUSEBIO DE LA CRUZ v. APOLONIO LEGASPI

    098 Phil 43

  • G.R. No. L-8042 November 29, 1955 - WORLD WIDE INSURANCE & SURETY CO. v. GONZALO L. MANUEL

    098 Phil 46

  • G.R. No. L-8088 November 29, 1955 - ROSITA VELOSO DE OLAYVAR v. ARISTOTELES OLAYVAR

    098 Phil 52

  • G.R. No. L-8262 November 29, 1955 - TEODORO OSORIO v. TRANQUILINO TAN JONGKO and PE BON UY

    098 Phil 55

  • G.R. No. L-8380 November 29, 1955 - PEOPLE OF THE PHIL. v. ROQUE L. DIPAY

    098 Phil 59