PHILIPPINE NATIONAL BANK, PLAINTIFF AND APPELLANT, VS. JOSE F. MONROY, DOING BUSINESS UNDER THE TRADE NAME AND STYLE OF “AVENUE ICE DROP FACTORY”, DEFENDANT AND APPELLEE.

This is an appeal from the order of the Manila court of first
instance dismissing a complaint of the Philippine National Bank.

Filed in March 1961, such complaint asked for revival of the same
court’s judgment of May 1949, requiring Jose F. Monroy to pay said Bank
the amount of P12,000.00 with interest at the rate of 7% from August 8,
1947, plus 10% attorney’s fees and costs.

The defendant Monroy having presented no answer, was defaulted. And
conformably to the Rules, the Bank proved its allegations as to
judgment and non-payment. However, the court ordered the dismissal of
the action, holding that it had already prescribed since more than ten
years had elapsed from May 1949 to March 1961.

The Bank seasonably appealed to this Court. Its brief extensively
argues the proposition that as prescription was a defense and Monroy
had made no answer, it is deemed waived; and the Court may not motu
proprio apply it. To this argument, the appellee offered no reply
because he had not been furnished a copy of the appellant’s brief,
because he had defaulted in the court below. He might conceivably
insist that as the dates appeared on the face of the complaint, the
point was rather a legal one which needed no specific mention in the
pleadings.

This particular issue we do not need to discuss, for the reason that
supposing the judge could motu proprio decide in accordance with the
factual allegations of the complaint, and that consequently the judge
could properly declare that “more than ten years have elapsed since
judgment * * * was rendered in May 1949, nevertheless, he drew a
mistaken legal conclusion therefrom—prescription—because the ten-year
period of prescription is to be counted from the day the judgment
became final;^[1]and the complaint made no allegation as to such date.

It was error, therefore, to declare that the plaintiff’s action had
prescribed. And as there is no question as to the terms of the judgment
and the non-payment thereof, the defendant-appellee is hereby ordered
to pay the appellant the sum of P12,000.00 with interest at 7% per
annum beginning August 8, 1947, plus 10% as attorney’s fees, and costs.

Bengzon, C. J., Padilla, Labrador, Concepcion, Reyes, J. B. L., Paredes, Regala and Makalintal, JJ., concur.

Mr. Justice Bautista, Mr. Justice Barrera and Mr. Justice Dizon took no part.

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^[1] Sec. 6, Rule
39; Phil. Nat. Bank vs. Silo, G.R. No. L-3498, March 19, 1951, and
other cases cited in Moran, Comments on the Rules of Court (1963 Ed.)
Vol. II, p.250