PHILIPPINE NATIONAL BANK, PLAINTIFF-APPELLEE, VS. ALBERTO DE LA CRUZ, DEFENDANT-APPELLANT.

Appeal taken by Alberto de la Cruz from the judgment of the Court
of First Instance of Nueva Vizcaya
in Civil Case No. 1094 entitled “Philippine National Bank vs. Alberto de
la Cruz” of the following tenor:

“WHEREFORE, judgment is hereby rendered in favor of plaintiff,
Philippine National Bank and against defendant Alberto de la Cruz, condemning
the said defendant to pay to the plaintiff the sum of P5,252.45
plus interest at the rate of 6% per annum from October 23, 1959, until the said
amount is fully paid, plus 10% of the amount due as attorney’s fees, and to pay
the costs of this suit.

“The defendant’s counterclaim is hereby dis­missed.”

On July 14, 1954, to secure payment of a loan of P4,000.00 evidenced by the corresponding promissory note,
appellant exe­cuted a real estate mortgage in favor of appellee
bank.  The loan was payable within one year from
the date it was granted, with interest at the rate of 6%, per annum, and an
additional 10% of the amount due as attorney’s fees in case collection is judicially
enforced.

On April 25, 1959, due to appellant’s default, appellee filed an ordinary action with the Court of First
Instance of Nueva Vizcaya
to recover from him the amount of P5,171.75, with the
stipulated interest from April 25, 1959, plus 10% of the amount due as
attorney’s fees and the costs of suit.

Appellant’s answer to the complaint admitted the allega­tions
thereof but averred: that, as security for the payment of the loan, he had
executed a real estate mortgage in favor of appellee
expressly empowering the latter to extra-judicially foreclose the same under
Act No. 3135 in case of his failure to pay the principal obligation; that,
after the filing of the action, appellee foreclosed
the aforesaid mortgage, and having thus chosen such remedy, it could no longer
maintain the action for collection. 
Appellant also interposed a counterclaim for damages.

Thereafter, appellee moved to dismiss
its complaint in view of the fact that it had filed another action for the same
cause against appellant in the Court of First Instance of Nueva
Vizcaya (Civil Case No. 1100), but this motion was
denied by the court on the ground that the issues had already been joined.

On January 7, 1960, appellee filed an
amended complaint to include in the original the allegation that, to satisfy
the mortgage debt amounting to “P5,452.45,
including stipulated in­terests, the mortgaged property, in an extra-judicial
fore­closure sale under Act 3135, was sold to it as the only bidder, for the
sum of P200.00, thereby leaving an unsatisfied
balance of P5,252.45 as of October 22, 1959 which, including stipulated
interest thereon, it sought to recover from appellant.  The amended complaint was admitted and upon
appellant’s failure to file an answer thereto, appellee
moved for a summary judgment, and on May 13, 1963, the court rendered the
appealed judgment.

The only questions raised by appellant in this appeal are the
ones covered by the first assignment of error made in his brief of the
following tenor:

“The lower court erred in
having sustained the action of the plaintiff in foreclosing upon the pro­perty
of the defendant extra-judicially after it had filed the present suit for the collection of the amount represented by
defendant’s promissory note thereon, and in not having held instead that the
plaintiff having elected to file on July 29, 1959 an action for a sum of money,
it may not simul­taneously extra-judicially foreclose upon the mortgaged
property.”

The second assignment of error is a mere corollary of the first.

It must be remembered that, upon the pleadings, the question
submitted to the trial court was merely this: 
Whether or not appellee bank, after foreclosing extra-judicially
the mortgage executed in its favor by appellant, was still entitled to recover the unpaid portion of the mortgage
debt which was not satisfied with the net proceeds obtained from the extra­judicial foreclosure sale of the
mortgaged property.  The trial court upheld the bank’s right and rendered
the appealed judg­ment.  Now, instead of
assailing the correctness of said de­cision, appellant questions the validity
of the extra-judicial foreclosure
proceedings commenced after the filing of the present action, and the trial
court’s refusal to hold that, having filed the present action on July 29, 1959
for the re­covery of the mortgage debt, appellee bank
could not simul­taneously foreclose the real estate mortgage extra-judicially.

It is obvious that the
questions raised in this appeal are totally immaterial and irrelevant, and
constitute no defense to appellee’s action to recover
the unpaid balance of its credit.  If
appellant desires to annul the
extra­judicial foreclosure proceedings, his remedy is clearly not an appeal from the decision of the trial court sustaining appellee’s right to collect the unpaid balance of the loan.

WHEREFORE, the appealed judgment is affirmed, with costs.

Reyes, J.B.L., (Acting C.J.), Makalintal,
Bengzon, J.P., Zaldivar,
Sanchez, Ruiz Castro, Angeles, and
Fernando, JJ., concur.