FORTUNE ENTERPRISES, INC., PLAINTIFF AND APPELLANT,VS. GENERAL FINANCE CORPORATION, PHILIPPINE SURETY & INSURANCE CO., INC. AND THE SHERIFF OF MANILA, DEFENDANTS AND APPELLEES.

CONCEPCION, J.:

On February 3, 1954, Fortune Enterprises, Inc.,
instituted Civil Case No. 21852 of the Court of First Instance of
Manila against Eduardo Obieta, et al. The action was one of replevin,
involving a Nash car, with Motor No. A-124565. On August 5} 1954,
judgment was rendered sentencing Obieta to deliver the car to the
Fortune Enterprises, or else, to pay the price of the car, with
interest, plus damages, attorney’s fees and cost;: The writ of
execution subsequently issued, after the decision had become final, was
returned, however, by the Sheriff of Manila with the report that he
could not enforce it upon said car, for he believed that the same was
the very car seized in compliance with a writ of seizure in Civil Case
Ho. 22899 of the same court, entitled “General Finance Corporation vs.Ceclilio
Brigola, et al,” likewise, for replevin. Thereupon, Fortune Enterprises
filed with the Sheriff a third party claim against the ‘General Finance
Corporation in said case No. 22399. Upon notice of such claim, the
General Finance Corporation filed the corresponding indemnity bond,
with the Philippine Surety & Insurance Co., as surety. Still later,
or on October 9, 1954, on motion of Fortune Enterprises, the court
amended the dispositive part of its decision in case No. 21852, as
follows:

“For the foregoing, the Court orders
defendant Eduardo Obieta, his representative or any other person or
persons holding the same car, subject to this case, to deliver the car
in question to plaintiff.

“The rest of the dispositive portion of the decision shall remain unaltered.”

Meanwhile, the car had, also, on motion of the
Fortune Enterprises, been examined by a representative of the Manila
Police Department, who expressed the opinion that although the car
seized in case No. 22899 appeared to bear Motor No. 12587, its true
number was A-12M-565, which had been filed. Accordingly, on October 19,
1954, the court issued in case No. 21852 an order stating that the
subject-matter of the two (2) cases was one and the same car and that

“The claimant of the ear in Civil
Case No. 22399 may file a third-party claim with the sheriff and all
other claimants of the same car may litigate among themselves to
determine of whom is the preferred and rightful owner and possessor of
the car in question.”

On December 2, 1954, Fortune Enterprises, Inc.,
instituted this case, in the same court, against the General Finance
Corporation, the Philippine Surety & Insurance Co., Inc. and the
Sheriff of Manila, to recover the value of the car in question, plus
attorney’s fees and costs, upon the theory that the car seized in Civil
Case No. 22899 is the same car litigated in Case No. 21852, and that
owing to the indemnity bond given by the General Finance Corporation
and the surety company (and, presumably, the use thereafter made by the
General Finance Corporation), said car is now in such a dilapidated
condition that it could “almost be considered as a junk.”

Defendant
filed an answer admitting some allegations of the complaint and denying
the other allegations thereof and alleging, by way of special defense,
that the car seized in case Ho. 22899 is different from the one
involved in case No. 21852.

In due course, the Court of First Instance of Manila
rendered a decision on October 17, 1955 dismissing the case upon the
ground of failure of plaintiff to introduce any evidence on the
identity of said car, plaintiff having labored “under the erroneous
impression that the decision in case No. 21852 is binding upon the
defendants herein because of the erroneous phraseology of the amendment
* * * to the original decision.” On November 2, 1955, plaintiff, who
had received copy of the decision on October 22, 1955, filed a “motion
far reconsideration and/or to reopen trial”, praying:

“* * * that the decision of this
Honorable Court be set aside and reconsidered, and the prayer, in the
complaint be granted in toto; or that if this Court still deems it
necessary for the plaintiff to present evidence relative to the
identity of the car, that it be given an opportunity to do, in order
that the rights between the parties be ultimately ventilated”

upon the ground:

“1. That the order of this court in
Civil Case No. 21852 (Exhibits ‘D’ and ‘D-1’) declaring that the Nash
car bearing No. 125787 is the same and one Nash car bearing Motor No.
A-124565, is an order against a specific thing, and therefore,
conclusive upon the title of the thing; (Section 44(a) Rule 39, Rules
of Court).

“2. That the decision of this
court in Civil case No. 21852 (Exhibits ‘A’ and ‘A-L’) binds any person
or entity who actually possessed the car therein litigated.”

This motion was denied on November 11, 1955} and
copy of the order to this effect was served upon plaintiff on November
19, 1955. On December 3, 1955, plaintiff filed a “motion for new trial”
upon the ground of:

“* * mistake or excusable negligence
which ordinary prudence could not have guarded against and by reason of
which plaintiff has been impaired in its rights (Section l (a), Rule
37, Rules of Court).”

By an order dated December 13, 1955, the court
denied this motion for the reason that it was a “second motion for new
trial”, the filing of which had not interrupted the running of the
period to appeal, and that the decision had, therefore, become final on
December 7, 1955. Thereafter, plaintiff filed its record on appeal,
which was approved by the lower court. The appellant now maintains that:

“The lower court erred in holding
that the motion for new trial filed by appellant on December 3, 1955,
is a second motion for new trial and, therefore, did not interrupt the
running Of the period within which appellant can perfect its appeal.”

At the outset, it is obvious that if the decision
had already become final, the record on appeal should not have been
approved. In any event, the ruling of the lower court complained of is
substantially correct.

It is urged that plaintiff’s motion, dated November
2, 1955, was one for “reconsideration”, not a motion for new trial. The
motion itself was, however, entitled, “Motion for Reconsideration
and/or to Reopen Trial”. Besides, the reasons relied upon were
equivalent to an assertion that the decision was contrary to law, which
is a ground for new trial (Rule 37, section l [c], Rules of Court).
Again, it was prayed in said motion that the decision be “set aside”.
In this connection, former Chief Justice Moran has the following to
say:

“In this connection, the question
arises as to whether or not a motion for reconsideration may be
considered a motion for new trial. In one case,, it was held that a
motion for reconsideration, founded on a mistake of fact, cannot be
considered as a motion for new trial, for it does not ask that the
judgment rendered be set aside and new trial granted. In another case,
however, a motion for reconsideration founded also on mistake of fact,
was considered as a motion for new trial, because it was therein asked that the judgment be set aside. As
may thus be seen, the two motions are of the same nature, although they
have different prayers. But, as once held, ‘a prayer in a motion, like
a prayer in a complaint, is not conclusive as to the character of the
motion.’ It seems clear that a motion for reconsideration is a motion for new trial, for
it can have no basis other than the grounds for new trial.” (Comments
on the Rules of Court by Moran, 1957 Ed., Vol. I, pp. 521-13;
underscoring ours.)

Upon the other hand, plaintiff’s motion of December
3, 1955, was based upon an alleged mistake or excusable negligence, in
that plaintiff erroneously relied upon the letter of the decision in
case No. 21852, as amended on October 9, 1954, as binding upon any
person holding the car in question, including the parties in Case No.
22899, and, hence, the defendants in this case. Inasmuch as mistake and
excusable negligence are specified in Rule 37, section 1, as grounds
for a motion for new trial, it results that the motion of December 3,
1955, was the second motion for new trial filed by plaintiff. Moreover,
the ground thereof existed when the first motion was filed on November
2, 1955. Accordingly, it did not interrupt the running of the period to
appeal (Rule 37, section 4, Rules of Court; Sawit vs. Rodas, 73 Phil., 310; Rili et al. vs. Chunaco et al, 48 Off. Gaz., 614; Mallari vs. Panahon, 52 Off. Gaz., 219; Rafanan vs. Rafanan, 52 Off. Gaz., 223).

Recapitulating, from October 22, 1955, when
plaintiff received notice of the decision, to November 2, 1955, when it
filed its “Motion for Reconsideration and/or to Reopen Trial”, ten (10)
days had elapsed. The order denying this motion was served on plaintiff
on November 19, 1955, so that the running of the period to appeal was
resumed on November 20, 1955 and the said period expired December 9,
1955, inasmuch as the filing of the motion for new trial on December 3,
1955, did not interrupt it. As a consequence, the decision was final
before the latter motion was heard on December 12, 1955.

It is thus clear that the present appeal has not
been perfected within the reglementary period and should, therefore,
be, as it is hereby dismissed, with costs against plaintiff-appellant.
It is s ordered.

Paras, C.J. Bangzon, Montemayor, Reyes, A., Bautista Angelo, Labrador, Reyes, J.B.L., Endencia, and Felix, JJ., concur

Mr. Justice Sabino Padilla took no part.