Philippine Supreme Court Jurisprudence


Philippine Supreme Court Jurisprudence > Year 1948 > February 1948 Decisions > R-Civil No. 1740 February 18, 1948 - FELISA R. DE VICTORIO v. JACOB VOLZ

080 Phil 239:




PHILIPPINE SUPREME COURT DECISIONS

SECOND DIVISION

[R-Civil No. 1740. February 18, 1948.]

FELISA R. DE VICTORIO, Plaintiff-Appellee, v. JACOB VOLZ, Defendant-Appellant.

Lucio Javillonar for Appellant.

Alfrdeo B. Calupitan for Appellee.

SYLLABUS


1. ACTIONS EJECTMENT: ABANDONMENT OF FIRST ACTION BY FILING A SECOND ACTION. — The plaintiff in an ejectment case decided, on appeal, by the Court of First Instance in her favor on May 20, 1944, did not revive said case after the destruction of the record. Instead, a new action was instituted after the liberation in which her daughter was the plaintiff. Held, That the filing of the second action operated as an abandonment of the first, if it was not independent of the other.

2. ID.; ID.; ID.; FINAL JUDGMENT IN SECOND ACTION NOT INVALIDATED BY RECONSTITUTING APPEAL IN FIRST ACTION. — The reconstitution by the defendant of his appeal in the first action for ejectment, did not invalidate the judgment in the second action where said judgment had become executory and is no longer subject even to direct attack.


D E C I S I O N


TUASON, J.:


This is an appeal on a reconstituted record from a judgment of the Court of First Instance of Manila which affirmed a judgment of the municipal court in an action for unlawful detainer. The appellant was the defendant and was sentenced to vacate the accesoria, on Antipolo Street, which was the subject matter of the suit. The action was commenced in the municipal court on December 22, 1943 and the decision of the Court of First Instance, on appeal, was handed down on May 20, 1944.

Appellant makes three assignments of error, every one of which raises questions of fact and requires a review of the evidence for its proper consideration. But the evidence has not been submitted nor does the appellant tell us how or where it can be obtained, if any copy still exists. Presumably, the evidence or stenographic notes as well as the pleadings and the decision were destroyed.

It was the plaintiff who should have had an interest in the reconstitution of the record. The decision was in her favor and the defendant continued occupying the accesoria. However, instead of reviving the original case, a new action was brought after liberation. And the plaintiff in the new action is Filipina Victorio de Virata, whereas the plaintiff in the first was Felisa R. de Victorio, Mrs. Virata’s mother. The substitution of Mrs. Virata for her mother may have been prompted by one of the defenses in the first case, namely, that Mrs. Virata was the owner of the apartment and was the party with whom the defendant had entered into the contract of lease.

The filing of the second action operated as an abatement or abandonment of the first, if it was not independent of the other. At any rate, the defendant was declared in default in the second action on August 15, 1945, and judgment was rendered by the Court of First Instance soon thereafter, judgment which long ago became final. More than this, the defendant has left the premises if he has not actually been evicted therefrom.

It is then obvious that the present appeal has ceased to have any reason for being. It is noteworthy that the petition for reconstitution of the record of the first case was filed after the judgment in the second case had become executory or had been executed already. If it was believed that by prosecuting the present appeal the final judgment in the second action could be invalidated, the appellant is mistaken. The last judgment is no longer subject even to direct attack. All the defenses which the defendant had in the first case could or should have been reproduced in the second. As far as the right to the possession of the house is concerned, there is no question raised in the present appeal which was not or could not have been decided in the last case, except the counterclaim for damages. All defenses as to the possession have been merged in the judgment in that case.

As to the claim for damages in the first action allegedly caused by the filing of the suit against the defendant, we leave the latter’s right open for determination in a separate suit, if he cares to file one against the first plaintiff. We cannot pass on that counterclaim on this appeal, even if we wanted, for the reason already adverted to, that it depends on the evidence which is not before us. If we are to rely on the recital of facts in the decision in the first case, the dismissal of the counterclaim was proper.

The present appeal is dismissed without costs subject to the reservation above stated.

Paras, Perfecto and Briones, JJ., concur.




Back to Home | Back to Main




















chanrobles.com





ChanRobles On-Line Bar Review

ChanRobles Internet Bar Review : www.chanroblesbar.com

ChanRobles MCLE On-line

ChanRobles Lawnet Inc. - ChanRobles MCLE On-line : www.chanroblesmcleonline.com






February-1948 Jurisprudence                 

  • G.R. No. L-1782 February 2, 1948 - FIDEL B. FORTUNATO v. THE DIRECTOR OF PRISONS

    080 Phil 187

  • G.R. No. L-725 February 3, 1948 - PEOPLE OF THE PHILIPPINES v. FRANCISCO APARATO

    080 Phil 199

  • G.R. No. L-869 February 9, 1948 - PEOPLE OF THE PHILIPPINES v. PASTOR TAN MATEO, ET AL.

    080 Phil 211

  • G.R. No. L-1357 February 9, 1948 - MARIANO R. LACSON v. C. N. HODGES, ET AL.

    080 Phil 216

  • G.R. No. L-1788 February 9, 1948 - MATIAS NAREDO v. NICASIO YATCO

    080 Phil 220

  • G.R. No. L-1808 February 14, 1948 - FAUSTINO FULGENCIO v. FELIPE NATIVIDAD

    080 Phil 224

  • G.R. No. L-1313 February 16, 1948 - ROSALINA CUNANAN v. RAFAEL AMPARO

    080 Phil 227

  • G.R. No. L-1424 February 17, 1948 - PEOPLE OF THE PHILIPPINES v. FERNANDO CARPIZO

    080 Phil 234

  • G.R. No. L-1651 February 17, 1948 - AGAPITO B. ANDAL v. BIENVENIDO A. TAN

    080 Phil 236

  • R-Civil No. 1740 February 18, 1948 - FELISA R. DE VICTORIO v. JACOB VOLZ

    080 Phil 239

  • G.R. No. L-1273 February 19, 1948 - JOSE F. SINGSON v. VICENTE Q. QUINTILLAN, ET AL.

    080 Phil 242

  • G.R. No. L-1636 February 24, 1948 - VICENTE MADRIGAL v. SOTERO RODAS

    080 Phil 252

  • G.R. No. L-1692 February 24, 1948 - AMADO SOROÑGON, ET AL. v. QUERUBE MAKALINTAL

    080 Phil 259

  • G.R. No. L-1988 February 24, 1948 - JESUS MIQUIABAS v. COMMANDING GENERAL

    080 Phil 262

  • G.R. No. 48411 February 24, 1948 - ELKS CLUB v. LEOPOLDO ROVIRA

    080 Phil 272

  • G.R. No. L-538 February 25, 1948 - PEOPLE OF THE PHILIPPINES v. MAURICIO OLAVIDES ET AL.

    080 Phil 280

  • G.R. No. L-1806 February 25, 1948 - ALFONSO PAGKALINAWAN, ET AL. v. SOTERO RODAS

    080 Phil 281

  • G.R. Nos. L-683 & L-684 February 26, 1940

    EL PUEBLO DE FILIPINAS v. ANASTACIO IMSON, ET AL.

    080 Phil 284

  • G.R. No. L-1612 February 26, 1948 - JORGE B. VARGAS v. EMILIO RILLORAZA

    080 Phil 297

  • G.R. No. L-1828 February 26, 1948 - JOSE SILVESTRE v. CONRADO SANCHEZ

    080 Phil 368

  • G.R. No. L-1247 February 27, 1948 - HOSPICIA BLAY, ET AL. v. BATANGAS TRANSPORTATION COMPANY

    080 Phil 373

  • G.R. No. L-1317 February 27, 1948 - PEOPLE OF THE PHILIPPINES v. ABRAHAM LOGO

    080 Phil 377

  • G.R. No. L-1566 February 27, 1948 - CIPRIANO OLAVIANO v. PRIMITIVO ORIELL

    080 Phil 379

  • G.R. No. L-1631 February 27, 1948 - ABELARDO SUBIDO v. ROMAN OZAETA

    080 Phil 383

  • G.R. No. L-1853 February 27, 1948 - GRACIANO SITCHON, ET AL. v. THE PROVINCIAL SHERIFF OF OCCIDENTAL NEGROS, ET AL.

    080 Phil 397

  • G.R. No. L-1870 February 27, 1948 - ANTONIO C. OGNIR v. DIRECTOR OF PRISONS

    080 Phil 401

  • G.R. No. L-1128 February 28, 1948 - GERARDO M. ALFONSO v. NICASIO YATCO

    080 Phil 407

  • G.R. No. L-1719 February , 28, 1948 - CANUTO VALIENTE v. JUEZ DEL JUZGADO DE PRIMERA INSTANCIA DE TARLAC

    080 Phil 415