OLYMPIA INTERNATIONAL, INC., PETITIONER, VS. THE HONORABLE COURT OF APPEALS, ALPHA INSURANCE & SURETY CO., INC., AND JUDGE JOSE C. CAMPOS, JR., RESPONDENTS.

Petitioner Olympia International, Inc. seeks a review of the
Resolution dated January 22, 1976
of the Court of Appeals^[1]
dismissing its petition for certiorari as well as the Resolution dated February 19, 1976 denying its motion for reconsideration.

The antecedent facts are undisputed:

On various dates from November 1965 to March 1966, petitioner
Olympia International, Inc. (hereinafter Olympia)
sold several typewriters to private respondent Alpha Insurance & Surety, Co., Inc. (Alpha, for brevity).  For alleged non-payment of the purchase
price, Olympia instituted on July 7, 1966 two (2) actions against Alpha:  Civil Case No. 15053 of the City Court of
Manila and Civil Case No. 2757-P of
the Court of First Instance of Pasay City, both replevin with damages but referring to different typewriters.

In Civil Case No. 2757-P,
which is the root case of the petition at bar, Olympia alleged that of the total purchase price of
P24,430.80 of the typewriters involve
therein, only P5,500.00 had been paid by Alpha. 
It therefore prayed that the court issue an order for the seizure of the
typewriters and their delivery to Olympia to protect its interest thereon and
to confirm its ownership over said personal properties; that should delivery thereof be unavailing,
that Alpha be ordered to pay Olympia the typewriters’ actual value in the sum of P18,930.80; that the amounts
deposited by Alpha be forefeited and considered as
rents for the typewriters; and that Alpha be ordered to pay 12% interest per annum commencing from
the date of payment indicated on each invoice until the unpaid
amount is fully paid, plus attorney’s fees of P4,425.20 and damages of
P4,000.00.

After Olympia had posted
a bond in an amount twice the value of the typewriters
involved and its assistant
manager for credit and collection had filed an affidavit showing that Olympia
was entitled to the ownership of the said typewriters, the lower court ordered
on July 15, 1966 the issuance of a
writ of replevin
and directed the deputy sheriff of Pasay City to
seize the personal properties involved and to retain the same
in his custody “to be dealt with as prescribed in Rule 60
of the Rules of Court until further orders” from the court^[2]. 
Consequently, the typewriters enumerated in said order were seized from Alpha and delivered to Olympia.

In its answer to the
complaint, Alpha alleged that since the invoices presented by Olympia in its application for a writ of replevin had not been signed by its authorized corporate
officers, they were not reflective of the real terms and conditions of the
sales.  It prayed for the redelivery of
the 24 typewriters seized and in addition, asked for the delivery of six (6)
more units which Olyampia had allegedly failed to
deliver to it pursuant to the sale agreement embodied in its confirmatory letter dated October
29, 1965.  As counterclaim, Alpha prayed for moral damages of P75,000.00,
actual damages of P10,000.00 and attorney’s fees of P5,000.00.  Olympia thereafter filed its reply to said answer
and its answer to the counterclaim.

Upon failure of the
parties to reach an amicable settlement, the lower court set the case for trial on the merits.  Olympia began presenting its evidence, and on
May
17, 1971, it moved
for the consolidation of Civil Case No. 2757-P with Civil Case No. 15053 of the
City Court of Manila.  The record is not
clear as to whether the consolidation of said cases materialized.

It appears on record,
however, that on December 15, 1972, the lower court issued the following order:

“On joint motion of both parties in the above-entitled case,
that they will settle the case amicably out of court, this case is hereby dismissed
without prejudice.”^[3]

As negotiations for an
amicable settlement again failed, Olympia filed a motion to revive the
case for trial on the merits, acting upon which, the lower court in its order
of December 7, 1973 provided:

“On December 1, 1973,
plaintiff through counsel filed a ‘Motion to Revive Case.’ It appearing from
the records that the case was dismissed without prejudice on December 15, 1972 (almost a year
ago) on joint motion of the parties and that the defendant has failed to comply with its commitment to
arrive at an amicable settlement of the case, the motion is granted.

“Let the case be set for hearing on January 11, 1974 at 8:30
o’clock in the morning.

“SO ORDERED.”^[4]

However, on January
16, 1974, the lower
court issued another order stating:

“On January 14, 1974, counsel for the defendant filed a
‘Manifestation and Motion Ex?Parte’ asking that
this Court reconsider its previous order, dated December 7, 1973 reopening this case on the ground that the parties have
previously filed a joint motion to dismiss the case and that the
subject matter of this case is presently before the military authorities.  It appearing that the plaintiff, in filing
its motion for reopening the case, failed to mention this fact and that at the
hearing in chambers on January 7, counsel for the plaintiff admitted the
allegations of the defendant that the matter is now in the hands of the
military.

“Wherefore, the previous Order, dated December 7, 1973 is lifted and set aside and that
the Order of December 15, 1972
which dismissed the case is hereby reinstated and reiterated.  As far as this Court is concerned, this case
is dismissed with prejudice.

“SO ORDERED.”^[5]

For more than one and a
half years thereafter, neither of the parties filed a motion for
reconsideration nor questioned the legality of said order in a higher
court.  Sometime in October, 1975, Alpha
filed a motion in the lower court praying, on equitable grounds, for the
cancellation of the “preliminary provisional writs of replevin”
previously issued by the court “inasmuch as no judgment was even rendered
in this case affirming plaintiff’s right to its possession of the typewriters
involved in this suit conformably to the provisions of Sec. 9, Rule 60 of the
Rules of Court.” It averred that the return of the typewriters was
necessary “to afford the military administration of a freer hand in
settling the controversy between the parties.”^[6]

On November
7, 1975, the lower
court issued an order reading:

“At today’s hearing, both parties were represented by counsel,
who requested that the case be discussed in chambers.  It appearing that there is no opposition to
the motion and finding the reason for the motion to be well taken, the motion
is granted.

“Wherefore, the preliminary provisional writs of replevin previously issued by this Court to enable
plaintiff to obtain possession of defendant’s personal property, subject matter
of this suit, is (sic) hereby cancelled and set aside in view of the dismissal
of this case, as per Order of January
16, 1974 which dismissal is with prejudice.  The plaintiff is
further ordered to return the aforesaid personal property belonging to the
defendant, to the Military Management of Alpha Insurance & Surety Co.

“SO
ORDERED.”^[7]

Olympia moved for a
reconsideration of said order on the grounds that the lower court had lost
jurisdiction over the case and that the return of the typewriters to Alpha was
tantamount to tolerance of its wrong-doing which the writ of replevin sought precisely to avoid.  This was denied in an order dated December 5, 1975.

Consequently, Olympia
filed a petition for certiorari with the Court of Appeals, charging the
lower court with lack of jurisdiction and abuse of discretion in issuing the
order of November 7, 1975.  In its resolution of January 22, 1976, the Court of Appeals dismissed
the petition on the ground that manual delivery of personal property or replevin under Rule 60 being a provisional or ancillary
remedy to the main action of recovery of personal property, the writ issued
against Alpha was provisional and temporary. 
The appellate court opined that since Olympia
allowed the dismissal with prejudice of the case, “its right to replevin died with the dismissal.” And, as said
dismissal was allowed by Olympia to
become final, the trial judge could do no less than to order the redelivery of
the typewriters otherwise he could be accused of “inconsistency and extralimitation of authority.”^[8]

 Its motion for reconsideration of said
resolution having been denied, Olympia
filed the instant petition for review on certiorari, alleging that:

RESPONDENT JUDGE OF THE COURT OF FIRST INSTANCE OF RIZAL, SEVENTH
JUDICIAL DISTRICT, PASAY CITY, BRANCH XXX, COMMITTED GRAVE ERROR OF
JURISDICTION IN DISMISSING ON JANUARY 16, 1974 THE CIVIL SUITS FOR REPLEVIN
WITH DAMAGES FILED BY PETITIONER AGAINST PRIVATE RESPONDENT, AND IN ISSUING THE
SUBSEQUENT ORDER DATED NOVEMBER 7, 1975.

RESPONDENT COURT OF APPEALS ERRED IN DENYING THE ORIGINAL PETITION
FOR CERTIORARI FILED BY PETITIONER THRU COUNSEL ON JANUARY 15, 1976.

BOTH THE RESPONDENT JUDGE AND THE RESPONDENT COURT OF APPEALS
COMMITTED GRAVE ERROR IN OVER-ESPOUSING LEGAL TECHNICALITIES TO THE PREJUDICE
AND IMPAIRMENT OF SUBSTANTIAL JUSTICE AND EQUITY.^[9]

Undoubtedly, this impasse is the result of the unorthodox
proceedings in this case.  The management
by the military of the Fernando Jacinto group of companies, including Alpha,
during the martial law years, deterred the lower court from judicially
determining which of the contending companies was entitled to the ownership or
possession of the typewriters.  It
allowed the military to take over the
task of helping the parties settle their controversy extrajudicially.  However, belatedly realizing that its
military manager could not facilitate the redelivery of the typewriters seized
from it through the writ of replevin, Alpha went back
to court which issued the orders in question.

The decisive factor in this controversy is the effect of the
first dismissal of Civil Case No. 2757-P on December 15, 1972.

Aside from the fact that the aforesaid dismissal was expressly
reserved by the trial court to be without prejudice, it has been held that the
dismissal of a case on motion of
both parties as in the case at bar is a
dismissal contemplated under Section 2, Rule 30 (now Rule 17) of the Rules of
Court, which is a dismissal without prejudice and not a dismissal governed by
Section 4 thereof, which operates as an adjudication on the merits^[10]. 
Similarly, it has been ruled that under certain attendant facts and
circumstances, and the added fact that the trial on the merits had not as yet
commenced, dismissal of the complaint is without prejudice and does not have
the effect of adjudication on the merits^[11]. 
Precisely, the previous dismissal without prejudice was removed from the
general rule that it should have the effect of an
adjudication on the merits, since the lower court had provided otherwise
and declared the dismissal to be without prejudice^[12].

The dismissal without
prejudice of a complaint does not however mean that said dismissal order was
any less final.  Such Order of dismissal
is complete in all details, and though without prejudice, nonetheless finally
disposed of the matter^[13].  It
was not merely an interlocutory order but a final disposition of the complaint^[14].

Thus, upon said dismissal
order attaining finality for failure of either party to appeal therefrom, the jurisdiction which the court had acquired
thereon was finally discharged and terminated, and any subsequent action filed
in accordance with the reservation cannot be considered a
continuation of the first action which was dismissed^[15].

From the foregoing, it becomes apparent that the lower court
acted in excess of its jurisdiction when it granted the motion to revive the
case filed by petitioner as plaintiff therein. 
By then (December 7, 1973),
the dismissal order of December 15,
1972 had long become final and executory,
thereby beyond the power of the court to amend, modify, reverse or set
aside.  And certainly, for the court to
entertain and grant said motion to revive the case would result in the setting
aside of the subject dismissal order.

Under the circumstances, the step available to petitioner as plaintiff therein if it
wanted to pursue its claim against
Alpha was to institute a new action in accordance with the reservation
contained in the order of dismissal.  It
could not revive the dismissed case by motion or otherwise, as said dismissal,
although without prejudice, had attained finality.

By the same token did the
lower court act in excess of its jurisdiction when it issued the Order of January
16, 1974 dismissing
Civil Case No. 2757-P anew, but this time, with prejudice.  That Order of January 16, 1974 had the same effect of reversing and setting
aside the dismissal order of December 15, 1972, which as above-stated could no longer be done in view of its having become final
and executory.

But while the Order of
December 7, 1973 which granted petitioner’s motion to revive case and that of
January 16, 1974 dismissing the case with prejudice are null and void for
having been issued in excess of jurisdiction, the same cannot be said of the
order dated January 22, 1976 which granted Alpha’s motion to cancel the writ of
replevin.  The
crucial difference lies on the fact that while the first two orders of December
7, 1973 and January
16, 1974 had the
effect of reversing and setting aside the long final dismissal order of December
15, 1972, the Order
of January 22, 1976 enforced and implemented it.

In other words, the
motion of Alpha to cancel the writ of replevin was in
the nature and character of a motion for execution of the dismissal order of December
15, 1972.  That the lower court retained jurisdiction to
carry into effect its final and executory order of
December 15, 1972 is beyond cavil for while Alpha’s motion was filed three (3)
years after the issuance of said dismissal order, the same may still be taken
cognizance of by the lower court in accordance with Section 6, Rule 39 of the
Rules of Court which states:

Sec. 6. 
Execution by motion or by independent action.-
A judgment may be executed on motion within five (5) years from the date of its
entry or from the date it becomes final and executory.  After the lapse of such time, and before it
is barred by the statute of limitations, a judgment may be enforced by action.

Indeed, logic and equity
demand that the writ of replevin be cancelled.  Being provisional and ancillary in character,
its existence and efficacy depended on the outcome of the case.  The case having been dismissed, so must the
writ’s existence and efficacy be dissolved.  To let the writ stand even after the dismissal of the case would
be adjudging Olympia as the prevailing party,
when precisely, no decision on the merits had been rendered.  The
case having been dismissed, it is
as if no case was filed at all
and the parties must revert to their status before the litigation.

The allegation of Olympia
that to cancel the writ of replevin would result in
Alpha’s unjust enrichment does not persuade. 
Alpha has consistently denied liability to Olympia,
and even assuming Alpha to be liable to Olympia,
the latter, having failed to properly exercise its right of action against
Alpha, must suffer the consequences thereof.

It is equally important to note that the right to file a new
action in this case has long prescribed, for while the commencement of a civil action stops the running of the statute
of prescription or limitations, its dismissal or voluntary abandonment by the plaintiff leaves the parties in
exactly the same position as though no action had been commenced at all.  The commencement of an action, by reason of
its dismissal or abandonment, takes no time out of the period of prescription^[16].

WHEREFORE, the instant petition is hereby DENIED.  Costs against petitioner.

SO
ORDERED.

Gutierrez, Jr., Bidin, and Cortes, JJ., concur.

Feliciano, J., on leave.

^[1]
First Division, Magno
S. Gatmaitan, J., Chairman and Roseller T. Lim and Sixto A. Domondon, JJ., Members.

^[2]
CA Rollo, pp. 31-33.

^[3]
CA Rollo, p. 4; underscoring
supplied.

^[4]
Ibid., p. 78.

^[5]
Ibid., pp. 74-75, Underscoring supplied.

^[6]
Ibid., p. 48.

^[7]
Ibid., p. 49.

^[8]
CA Rollo, pp. 65-67; Rollo, pp. 18-20.

^[9]
Petitioner’s Brief, pp. 1-2; Rollo, p. 71.

^[10]
Advincula vs. Advincula, 10 SCRA 190 (1964).

^[11]
Perez vs.
Perez, 73 SCRA 523 (1967).

^[12]
American Insurance
Co. vs. United States Lines Company, et al., 63 SCRA 325 (1975).

^[13]
Aguisap vs. Basilio, 23 SCRA 1437 (1967).

^[14]
Zabat, Jr. vs. Court of
Appeals, et al., 142 SCRA 587.

^[15]
Aguisap vs.
Basilio, supra.

^[16]
Conspecto vs. Fruto, 31 Phil. 145 (1915).