EUGENIO EVANGELISTA AND SIMEON EVANGELISTA, PLAINTIFFS AND APPELLEES, VS. BRIGIDA SORIANO, DEFENDANT AND APPELLANT.

This is an action for detainer and collection of rentals due
and unpaid. After trial judgment was rendered for the plaintiffs. The defendant
appealed filing a supersedeas bond. In the Court of First Instance the defendant
filed an answer setting up illegality of the rentals sought to be collected and
of the assessed value of the leased premises upon which the increased rental was
based, failure of the plaintiffs to make plumbing repairs in the leased
premises, a counterclaim for P128 claimed to be an excess of the amount of
rental authorized by law from February 1945 to December 1946, both inclusive,
and damages in the sum of P250. On 21 January 1949 the attorneys for the
plaintiffs filed a motion praying for the dismissal of the case, payment to the
plaintiffs of the supersedeas bond in the sum of P347.50 and withdrawal by them
of the amount of F176 for rentals deposited by the defendant, for the reason
that the latter had vacated the premises on 19 January 1949 and because she and
her attorney failed to appear at the resumption of the trial of the case on 21
January, (the plaintiffs waiving payment of rentals for July, October, November
and December 1948 and half of January 1949, to put an end to the litigation,
without costs. On that date, after stating that the case was partly tried on 1
July, the trial having been postponed due to the failure of the clerk of the
municipal court to forward the exhibits presented by the parties, and that the
resumption of the trial set for 24 August and 23 September was postponed again
upon motion of the attorney for the defendant and set for 21 January 1949, on
which date the defendant and her attorney failed to appear and the attorneys for
the plaintiffs moved for the dismissal of the case and prayed that the
plaintiffs be allowed to withdraw the rentals deposited in court by the
defendant, the court entered an order holding that “her failure to appear and
prosecute her appeal is tantamount to a withdrawal of said appeal” and that “the
appeal is considered withdrawn, the judgment of the Municipal Court is deemed
revived and let the record of the case be remanded to the Municipal Court in
accordance with section 9, Rule 40, of the Rules of Court, for the enforcement
of the judgment rendered by it in the case.” On 24 January 1949 the attorney for
the defendant filed a motion praying that the proceedings be suspended until
after the provisions of section 17, Rule 3, shall have been complied with, in
view of the fact that the defendant had died on 9 January 1949, and explaining
that his (attorney’s) failure to appear at the resumption of the trial on 21
January was due to the fact that there was a proposal for an amicable settlement
and that not having heard from the defendant despite his letter to her sent on
the 15th, he thought that the case had been settled amicably. On 29 January 1949
both motions for dismissal of the case filed on behalf of the plaintiffs and for
suspension of the proceedings filed in behalf of the defendant were acted upon,
the Court inviting attention to its order of 21 January 1949, which, according
to it, disposed of the two motions, and further holding that the case was
“within the jurisdiction of the Municipal Court for the execution of the
judgment rendered by it in this case.” On 18 May 1949, acting upon a motion
filed by the plaintiffs, the court authorized the attorneys for the plaintiffs
to withdraw the sum of P176 in cash for rentals deposited and of P347.50 filed
as supersedeas bond, and further stated that “this withdrawal is authorized in
accordance with the judgment rendered in this case on 21 January 1949.” On 21
June 1949 attorney for the defendant moved for reconsideration of the order of
18 May 1949, on the ground that it was contrary to law and entered without
jurisdiction. This motion was denied. A notice of appeal, an appeal bond and a
record on appeal were filed. The appeal was certified to this Court because only
questions of law are raised and involved.

Section 9, Rule 40, provides: “A perfected appeal shall operate
to vacate the judgment of * * * the municipal court, and the action when duly
entered in the Court of First Instance shall stand for trial de novo upon its
merits in accordance with the regular procedure in that Court, as though the
same had never been tried before and had been originally there commenced. If the
appeal is withdrawn, the judgment shall be deemed revived and shall forthwith be
remanded to the * * * municipal court for execution.” The defendant filed her
answer within the time provided for in section 1, Rule 9, so she could not be
deemed and declared in default (section 3, Rule 7). Even if she had failed to
file her answer within the time required and were declared in default, the
plaintiffs were bound to present their evidence upon which judgment could be
rendered. In accordance with the above quoted provisions of section 9, Rule 40,
the party who could withdraw the appeal was the appellant, because such
withdrawal would revive the judgment against her rendered by the municipal
court. Obviously, the appellees for whom judgment was rendered could not ask for
the withdrawal of the appeal. They would not ask for the dismissal of the case
because the judgment secured by them would not be revived thereby and they would
be left without judgment which was vacated upon perfection of the appeal.

It is contended that section 9, Rule 40, is not applicable to
appeals in detainer cases because the appeal does not vacate the judgment but
suspends only, as may be inferred from the authority of the court to which the
case has been appealed to order execution of the judgment during the pendency of
the appeal upon failure of the appellant to pay to the prevailing party or to
deposit in court the stipulated rentals or the reasonable compensation, for the
preceding month on or before the tenth day of each month, for the use or
occupation of the premises, as found by the judgment of the municipal or justice
of the peace court. This authority to direct execution expressly provided for in
section 8, Rule 72, in no way alters the provisions of section 9, Rule 40, on
the effect of an appeal upon a judgment rendered by a municipal or justice of
the peace court. And proof of this is the provision in the same section that
“such execution shall not be a bar to the appeal taking its course until the
final disposition thereof on its merits.” When the defendant or her attorney
failed to appear at the resumption of the trial on 21 January 1949, the court
could not dismiss the appeal because it was not authorized to do so, but was in
duty bound to hear the evidence of the plaintiffs and render judgment thereon
unless for good reasons it deemed it justified to postpone the hearing of the
case. Nor could it dismiss the case and grant the remedy prayed for, such as the
payment of rentals, even if the defendant had vacated already the premises,
without a finding that such rentals were really due and unpaid, for a dismissal
of the case, if granted, would leave the prevailing parties in the municipal
court bereft of or without a judgment. The failure of the defendant or her
attorney to appear at the resumption of the trial of the case on 21 January 1949
could not be deemed a withdrawal of her appeal. And as there are no findings of
facts upon which a judgment may be based and rendered, the order of 21 January
1949 is not and cannot be deemed a judgment of the case on the merits (section
12, Article VIII, of the Constitution).

As to the substitution of the defendant, her attorney should
prove the fact of her death and the court shall order, upon proper notice, the
legal representative of the deceased to appear for her within 30 days or such
time as may be granted, as provided for in section 17, Rule 3. The court could
not order the legal representative of the deceased to appear for her because it
considered the order of 21 January 1949 as judgment entered in the case and
notice of the defendant’s death was given it three days later or on 24 January
1949.

The trial court seems to be of the belief and opinion that the
order of 21 January 1949 is a judgment, where it held that failure of the
defendant or her attorney to appear at the resumption of the hearing of the case
on that date was tantamount to a withdrawal of the appeal, that the judgment of
the municipal Court was revived, and that for that reason it directed the record
of the case to be remanded to the municipal court for execution. For the reasons
above set forth this is an error, because as the appellant did not withdraw the
appeal there was no withdrawal thereof. On the other hand, as already stated,
the appellees could not ask for the withdrawal of the appeal because it was not
their appeal and would not ask for the dismissal of the case because, if
granted, they would have been left without a judgment.

The orders of 29 January and 18 May 1949, being predicated upon
an erroneous opinion that the order of 21 January 1949 is a judgment, which is
not and is a nullity, are set aside and the case remanded to the court below for
further proceedings in accordance with law, without costs.

Paras, C. J., Pablo, Bengzon, Tuason, Montemayor, Jugo,
Bautista Angelo, and Labrador, JJ., concur.