RUFINO CASTAÑO, GUALBERTO CASTAÑO, BRIGIDO CASTAÑO, SOCORRO CASTAÑO AND SERVILLANO CASTAÑO, WHO ARE ALL OF MINOR AGE, AND JACINTA PALAGAN, AS GUARDIAN AD LITEM, PLAINTIFFS AND A…

On June 14, 1949 plaintiffs-appellants filed this action in the Court of
First Instance of Misamis Occidental, alleging that they are the adulterous
children of Ramon Castaño, deceased, by one Jacinta Palangan, and the defendants
his legitimate children by his legal wife, Antonina Paburada; that Ramon Castaño
died in Cebu on October 21, 1936, survived by all the above-mentioned adulterous
and legitimate children and wives; that the deceased left considerable property,
private and individual, not conjugal, worth not less than P100,000; that upon
his death proceedings for the distribution of his properties were instituted and
said properties were partitioned, each of the defendants receiving a
corresponding share therein; and that the plaintiffs as well as their mother
have no property, or trade, or profession from which to derive support and
maintenance , which is P30 for each of them.

The complaint was docketed as a pauper’s case and on July 5, 1949 defendants
presented a motion to dismiss on the following grounds: that the plaintiffs have
no legal capacity to sue; that the court has no jurisdiction over the persons of
the defendants; that the complaint states no cause of action; and that said
cause of action, if any exists, has already been barred by prior judgment. The
first is based on the fact that the guardian proposed in the complaint was not
actually appointed at the time of the filing of the complaint; the second, on
the fact that the order appointing the guardians was not attached to the
original copy of the summons; the third, on the allegation that no final
judgment in a criminal or civil action had been rendered wherein the filiation
of the plaintiffs-minors is expressly acknowledged; and the fourth, for the
reason that on July 18, 1940 a former civil action between the same parties and
for the same cause (Civil Case No. 602) was dismissed for failure of the
plaintiffs to amend their complaint after a demurrer thereto had been
sustained.

The court dismissed the case on the first, second and fourth grounds
mentioned above. The case was appealed to the Court of Appeals, and the latter
has certified it to us for the reason that only questions of law are involved in
the appeal. Two assignments of error are made in the plaintiffs-appellants’
brief, thus:

“1. The Court erred in holding that the plaintiffs have no legal capacity to
sue and the court has no jurisdiction of the person of the defendants.

2. The court erred in holding that the cause of action is barred by prior
judgment.”

The record shows that when the complaint was served upon the defendants there
was yet no appointment of a guardian ad litem, although a request for
such appointment is made therein. But on September 17, 1949, on noting the
absence of an order appointing a guardian ad litem for the plaintiffs,
the court immediately ordered the desired appointment and the mother of the
plaintiffs-minors, who was appointed, immediately qualified therefor. This was
done before the court heard the motion to dismiss. The motion to
dismiss was granted on October 22, 1949. As the appointment for the guardian
ad litem was actually made on September 17, 1949, before the order of
dismissal, the first ground for the order can not be sustained. As to the second
ground, i.e., that no appointment for a guardian ad litem was attached
to the complaint served upon the defendants, the defect is a mere technicality
and the most that the court could have done was to order that a new summons,
with copy of the appointment of the guardian ad litem, or the latter
merely, be served upon the defendants. The service of the summons was sufficient
to subject the defendants to the court’s jurisdiction (Pagalaran vs.
Ballatan , 13 Phil., 135). The first assigned error must, therefore, be
sustained.

As to the second error, the record discloses that civil case No. 602 is for
the same cause, support and maintenance for the plaintiffs-appellants. The
reason why the demurrer interposed to the complaint was sustained was the
failure to allege therein a sufficient cause of action, because it appeared from
the complaint that the properties of the deceased Ramon Castaño had not yet been
distributed and the defendants, as his legitimate children, had not yet received
their respective participation therein. The order runs thus:

“La accion de los demandantes versa sobre una reclamacidn de alimentos contra
los aqui demandados como herederos del finado Ramon Castaño, que en vida se
separe de su legitima esposa y su unio con Antonina Paburada con quien tuvo
varios hijos que son los aqui der mandantes.

“No se alega en la demanda, sin embargo, que ya se ha verificado la
liquidacidn judicial de los bienes del difunto Ramon Castaño y que lbs aqui
demandados como sus herederos Iegitimos hayan recibido sus participaciones para
que los aqui demandantes puedan tener derecho de acci6n contra los referidos
demandados. * * *.”

The issue squarely brought before us is, Is the order of dismissal issued
after the plaintiffs had failed to amend their complaint, which had been
demurred to, a final judgment barring the present action? Rule 30, section 3, of
the present Rules of Court can not be cited to sustain the Affirmative view,
because the orders sustaining the demurrer to the complaint in the first case
and dismissing same were issued under the old rules of court and before the
bresent rules were in force. The effect of the orders must be governed not by
the latter but by the former, which expressly provided:

“* * *; but if the party fails to amend his pleading1 within the time limited
or elects not to amend the court shall render such judgment upon the
subject-matter involved in the pleading and demurrer as the law and the facts of
the case as set forth in the pleading warrant. * * *.” (Sec. 101, Code of Civil
Procedure.)

The order of dismissal of the first complaint is final and conclusive only as
to the absence of a sufficient cause of action at the time, i.e.,
because the defendants had not yet received their share in the inheritance of
the common father. But it is not conclusive as to the new complaint, where
allegation is made that the defendants have already received their shares in the
inheritance left by the common father. When the first complaint was filed in
1939, no. cause of action had accrued against the defendants because they had
not yet received their shares in the inheritance, their liability arising from
the fact of their receipt of said shares. Under the new complaint the cause of
action has. accrued, the cause upon which the defendants’ obligation depends
having happened. It would be unjust and unfair, at this juncture, and which this
new fact in mind, to say that the previous order of dismissal is a bar to the
new complaint. Of practical application is what this Court said in Bayot vs.
Zurbito, 39 Phil., 650, thus:

“* * *; but on the contrary the authorities show that a person who relies on
a former judgment as a conclusive adjudication of any controversy must takes the
prior judgment for what it appears to be on its face; and if it is not a
judgment on the merits, it does not conclude the right of action.

This point came under consideration in Wanzer vs. Self (30 Ohio St.,
378), where the judgment relied upon as res judicata contained the
reservation ‘without prejudice,’ It was argued that the insertion of these words
in the judgment was erroneous and unwarranted and that as the case had been in
fact tried upon the merits the judgmenti mast be considered as a conclusive bar
to another action. Said the court:

‘The actual judgment rendered does not appear to be one that is conclusive of
the merits of the case. To give it the effect to such a judgment would not only
create that which does not exist, but might work a great wrong to the plaintiff
by finally determining a just cause of action which the court did not adjudge
against him, and by misleading him to acquiescence in a judgment from which he
would appealed had it been regarded as conclusive. * * *. The : judgment is an
entirety, and if it has any validity, it must stand as rendered. * * *. Upon
that judgment the party must stand, and, being without prejudice to a future
action, it is not a bar to the action to which it was pleaded’ (30 Ohio St.,
381, 382).”

From another point of view, it may be stated that the said case was dismissed
because the action was premature. The order of dismissal, therefore, is no bar
to the present suit.

“A judgment for defendant or an order dismissing the action, for the
reason that it was prematurely brought, either because the amount claimed
is not yet due, or because plaintiff has failed to perform some preliminary act
necessary to perfect the cause of action, such as making demand before suit,
giving notice of claim, furnishing security for costs, or paying the costs of a
previous action was ordered, will not bar another action for the same cause
when the right of action becomes complete. * * *.” (34 C.J., 777-778;
Italics supplied).

“* * *. It is true that he was named as one of the assignors of various
claims involved in the first action, but that case went off on demurrer; and the
judgment therein entered does not constitute res judicata upon any
question of fact. * * *.” (Maxion vs. Manila Railroad Co., 44 Phil.,
597, 607.)

For the foregoing considerations, the order of dismissal appealed from should
be, as it is hereby reversed, with costs against defendants-appellees.

Paras, C. J., Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo,
Bautista Angelo, Concepcion, and Reyes, J.B.L., JJ., concur.