MARIA G. AGUAS, FELIX GUARDINO AND FRANCISCO SALINAS, PLAINTIFFS AND APPELLANTS, VS. HERMOGENES LLEMOS, DECEASED DEFENDANT SUBSTITUTED BY HIS REPRESENTATIVES, PERPETUA YERRO-LLE…

On 14 March 1960, Francisco Salinas and the spouses Felix Guardino and Maria
Aguas jointly filed an action in the Court of First Instance of Catbalogan,
Samar (Civil Case No. 4824), to recover damages from Hermogenes Llemos,
averring that the latter served them by registered mail with a copy of a
petition for a writ of possession, with notice that the same would be submitted
to the said court of Samar on February 23, 1960 at 8:00 a. m.; that in view of
the copy and notice served, plaintiffs proceeded to the court from their
residence in Manila accompanied by their lawyers, only to discover that no such
petition had been filed; and that defendant Llemos maliciously failed to appear
in court, so that plaintiffs’ expenditure and trouble turned out to be in vain,
causing them mental anguish and undue embarrassment.

On 1 April 1960, before he could answer the complaint, the defendant died.
Upon leave of court, plaintiffs amended their complaint to include the heirs of
the deceased.

On 21 July 1960, the heirs filed a motion to dismiss, and by order of 12
August 1960, the court below dismissed it, on the ground that the legal
representative, and not the heirs, should have been made the party defendant;
and that anyway the action being for recovery of money, testate or intestate
proceeding should be initiated and the claim filed therein (Rec. on Appeal, pp.
26-27).

Motion for reconsideration having been denied, the case was appealed to us on
points of law.

Plaintiffs argue with considerable cogency that contrasting the correlated
provisions of the Rules of Court, those concerning claims that are barred if not
filed in the estate settlement proceedings (Rule 87, sec. 5) and those defining
actions that survive and may be prosecuted against the executor or administrator
(Rule 88, sec. 1), it is apparent that actions for damages caused by tortious
conduct of defendant (as in the case at bar) survive the death of the latter.
Under Rule 87, section 5, the actions that are abated by death are: (1) claims
for funeral expenses and those for the last sickness of the decedent; (2)
judgments for money; and (3) “all claims for money against the decedent,
arising from contract express or implied“. None of these includes that of
the plaintiffs-appellants; for it is not enough that the claim against the
deceased party be for money, but it must arise from “contract express or
implied”, and these words (also used by the Rules in connection with attachments
and derived from the common law) were construed in Leung Ben vs. O’Brien, 38
Phil. 182, 189-194,

“to include all purely personal obligations other than those which
have their source in delict or tort“

Upon the other hand, Rule 88, section 1, enumerates actions that survive
against a decedent’s executors or administrators, and they are: (1) actions to
recover real and personal property from the estate; (2) actions to enforce a
lien thereon; and (3) actions to recover damages for an injury to person or
property. The present suit is one for damages under the last class, it having
been held that “injury to property” is not limited to injuries to specific
property, but extends to other wrongs by which personal estate is injured or
diminished (Baker vs. Crandall, 47 Am. Rep. 126; also 171 A. L. R. 1395). To
maliciously cause a party to incur unnecessary expenses, as charged in this
case, is certainly injury to that party’s property (Javier vs. Araneta, 90
Phil., 287).

Be that as it may, it now appears from a communication from the Court of
First Instance of Samar that the parties have arrived at an amicable settlement
of their differences, and that they have agreed to dismiss this appeal. The
settlement has been approved and embodied in an order of the Court of First
Instance.

The case having thus become moot, it becomes unnecessary to resolve the
questions raised therein. This appeal is, therefore, ordered dismissed, without
special pronouncement as to costs.

Bengzon, C. J., Padilla, Bautista Angelo, Labrador, Concepcion, Barrera,
Paredes, Dizon, Regala, and Makalintal, JJ., concur.