TRINIDAD FLORENDO, PETITIONER AND APPELLEE, VS. RUFINA ORGANO, RESPONDENT AND APPELLANT.

This is an appeal from the Court of First
Instance of Ilocos Sur “absolving” the plaintiff from a counterclaim.
The main action, which was for divorce, had been dismissed for failure
of the plaintiff to prosecute.

Briefly, the plaintifff and the defendant are man and wife and
have been living apart since 1909. In an action for maintenance and
support brought in Civil Case No, 2853 of the Court of First Instance
of Ilocos Sur, this Court on appeal (G. R. No, 41438) handed down on
March k, 1935, a decision which closed with this judgment:

“En su virtud, se revoca la sentencia apelada y se
condena al demandado-apelado a pagar a la demandante-apelante las
pensiones alimenticias devengadas y no pagadas, fijadas en la sentencia
de 8 de septiembre de 1909, desde el 1° de febrero de 1932 hasta el
present e, asi como las que vayan venciendo de aqui en adelante por la
misma suma de P30 al mes hasta que por orden judicial se modifique
dicha suma, mas la cantidad de P500, en concepto de honorarios de
abogado, con los intereses de esta tiltima suma a razdn de 6 por ciento
al año desde la interposicion de la demanda hasta su completo pago, mas
las costas en ambas instancias.”

It was for the balance of the proceeds of that judgment and the
installments which fell due thereafter that the counterclaim was
interposed. It was alleged that the said judgment had been only
partially executed on August 8, 1939, leaving P700 unsatisfied, and
that none of the subsequent installments had been paid. The total
amount demanded was P3,640, embracing all the unpaid allowances down to
the date of the filing of the counterclaim, which was October 9, 1943.

The trial court held that the counterclaim was res judicata
and that the defendant’s remedy did not lie in this “expediente”. But
the court was unexplicit as to where and how the defendant should go
for relief, or whether, in its opinion, the plaintiff had been
discharged from all liability under the unexecuted judgment by
prescription or laches, as the plaintiff contended.

The allegations in the pleadings and discussions in the briefs may
be boiled down to this question a£ the pivotal issue. What is the
appropriate procedure to enforce the Judgment in Civil Case No. 2853?
It is the counterclaimant’s contention that that judgment has become
dormant, and hence the necessity for reviving it. But if revival of the
judgment was in defendant’s mind, neither the text of the counterclaim,
her prayer, nor her evidence discloses such intention. Upon its face
the counterclaim was a demand for outright payment of the amount
therein stated.

But, strangely, the counterclaim as a direct action, which the
appellee, the lower court and we construe ‘it to mean, is not out of
place in this case, and it is unnecessary to revive the judgment on
which it, the counterclaim, is founded. Both by law and authority as
well as by its very nature, a judgment for alimony does not become
dormant, much less does it prescribe except as to installments not
recovered within the period fixed by the statute of limitations. The
authorities are in harmony that a money decree for alimony is not a
judgment in the full legal meaning of the term and does not become
stale simply because of a failure to issue execution thereon within the
period limited by statute. The decree continues in force until it
expires or is changed, which is within the authority of the court to
effectuate. The court which awarded the alimony, it has been held, has
the parties before it as long as the award has operative force, and may
modify or terminate the decree as the changed or changing circumstances
make modification or termination just or necessary. (Lemert vs. Lemert, 74 N.E., 194; Stare ex rel. Cook vs. Cook, 64 N. E. 567; Olney vs. Watts, 3 N.E. 354; Myers vs. Myers, 3 Ohio N. P. 162; Sargent vs. Sargent, 8 Ohio N. P. 238; Khapp vs. Khapp, 134 Mass. 353; Mclly vs. McIlroy, 208 Mass. 458; Atkinson vs. Atkinson, 170 So. 198, 200.) This doctrine is implied in this Court’s judgment, supra, and was written more explicitly in the following paragraph of the opinion:

“A diferencia de las sentencias ordinarias, la
referida sentencia no tiene fecha fija de cumplimiento, sino que dura
mientras dura la obligacion del demandado a alimentar a la demandant e
y el derecho de Ista a ser alimentada. Cierto es que, como toda otra
sentencia por cantidad de pesos, caduca dentro (despues) de a los diez
anos desde que se promulgo; pero no ‘ en cuanto a los pagos a plazo
devengados y no pagados dentro de los diez anos desde el vencimiento de
cada plazo (Art. 43, caso l.°, Cod. de Proc. Civ.; 34 Corpus Juris, 1087).”

It follows from the above ruling and the authorities before cited
that, under ordinary circumstances, a simple motion for execution would
be the proper step to secure the payment of support and maintenance in
arrears. A motion of the character mentioned would afford the judgment
creditor a speedy and adequate remedy, and has the advantage of being
less cumbersome and complicated than a counterclaim.

Notwithstanding the availability of a motion to achieve the same
end, however, we perceive no valid reason why a counterclaim may not be
set up if for no other reason than to bring in An one proceeding all
disputes between the same parties. The new Rules of Court; are liberal
in the allowance of counterclaims, and even discourage separate actions
which make for multiplicity of suits; wherever possible they permit,
and sometimes require, combining in one litigation all the cross-claims
of the parties. (See Sec. 1, Rule 10, and the notes to Koran’s
Comments thereon.) The plaintiff having himself brought an action
against the defendant should submit himself in good grace to a
counterclaim which differs from a motion only in form, and the court
below in the face of the plaintiff’s own move ought not to have
listened to objections which are mere trifles that do not prejudice the
substantial rights of the objector.

We are of the opinion therefore that the trial court erred in
dismissing the defendant-appellant’s counterclaim or absolving the
plaintiff from it, regardless of the theory of the decision.

Before concluding, a passing comment on the operation of the
statute of limitations with reference to decrees for alimony on
installments may be in order, if only to explain the concepts expressed
in the preceding paragraphs and to put out of the way a possible source
of future controversy between the parties and resultant further delay.

We have said that a judgment for support does not prescribe or
become dormant. At the same time we have also said that installments
not recovered within ten years from the time they became due do
prescribe.

Lest these pronouncements be thought confusing and contradictory,
let it be noted that installments into which an alimony is derived may
lapse by prescription but that the judgment itself does not. The
judgment remains in effect indefinitely but unpaid installments that
are more than ten years old are uncollectible. This situation is made
possible, Indeed inevitable, by the fact that installments do not fall
due at the same time, with the result that while some installments may
prescribe, there always remain others which do not. As installments
become payable one at a time, so they prescribe in the same
progression, successively as they are allowed to reach the ten-year
limitation period without any action being taken to collect them.

The installments included in the judgment of this Court in G. R.
No. 41438 date as far back as February 1, 1932, so that some of them
were already of more than ten years1 standing when the dismissed
counterclaim was docketed in 1943. However, the period of limitation
with reference to those installments was interrupted by the institution
of the action in Civil Case No. 2853, and that interruption did not
cease until the rendition of the Supreme Court’s decision in March,
1935. By reason of the interruption the full period of prescription
commenced to run anew upon the cessation of the suspension; and
computed from that date, the ten-year limitation had not run out when
the counterclaim was set up in 1943. “When prescription is interrupted
by a judicial demand, the full time for the prescription must be
reckoned from the cessation of the interruption (Spring vs. Barr, 120 So, 256, 2 La. App. 732; 54 C.J.S. 293.)

The appealed decision is reversed and the court below is directed
to proceed to give judgment on the defendant’s counterclaim for the
amount to be ascertained from the evidence already introduced or which
may be introduced upon further trial if a new trial be found necessary
for this purpose. Costs will be assessed against the plaintiff and
appellee.

Paras, C. J., Feria. Pablo, Bengzon, Padilla, Reyes. Jugo, and Bautista Angelo, JJ., concur.