MELECIO ARRANZ, PLAINTIFF AND APPELLANT, VS. MANILA SURETY & FIDELITY CO., INC., DEFENDANT AND APPELLEE.

An action was brought in the Court of First Instance of Manila by
the plaintiff to recover from the defendant the sum of P14,200 claimed
to have been paid by him under no obligation to pay to the defendant;
P2,000 for attorney’s fees and P10,000 for moral and exemplary damages
and costs: A motion to dismiss the complaint with costs for failure to
state a cause of action was granted. A motion for reconsideration was
denied. An appeal was taken by the plaintiff from the dismissal of his
complaint and denial of his motion for reconsideration. This Court
rendered judgment affirming the order of dismissal for the reason that
there is no allegation in the complaint that the appellee as surety
promised the principal that it would pay the loan or obligation
contracted by him for his account and that the sum sought to be
recovered by the appellant as premium was due the appellee and
collectible from the appellant while the liability of the former as
surety subsisted.^[1] A motion
for reconsideration of the judgment was denied. A motion to allow an
amended complaint attached thereto was denied. A motion for
reconsideration of the last mentioned denial was also denied for the
reason that the order of dismissal, affirmed by this Court, has long
become final. A second motion for reconsideration was likewise denied.
An appeal by the plaintiff brought for the second time the case to this
Court.

The appellant insists that he may amend his complaint before a
responsive pleading is served and filed (section 1, Rule 17). Although
the motion to dismiss was sustained by the trial court and affirmed by
this Court, still the appellant contends that he may amend his
complaint, because a motion to dismiss is not a responsive pleading.
What is contemplated in section 1, Rule 17, is a substantial amendment
to the complaint before any judicial action is taken thereon. An order
of dismissal upon motion is an adjudication of the case on the merits.
After the order of dismissal the party whose pleading was adjudged
defective may amend his pleading. However, if he insists that his
pleading is not defective and appeals from the order of dismissal which
is sustained and upheld by an appellate court, he is no longer entitled
to amend his pleading adjudged defective by both Courts.

The orders appealed from are affirmed, with costs against the appellant.

Paras C. J., Bengzon, Montemayor, Bautista Angelo, Labrador, Reyes, J. B. L., Barrera, and Gutierrez David, JJ., concur.

Concepcion, J., reserves his vote.

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^[1] Melecio Arranz vs. Manila Fidelity & Surety Co., Inc., 101 Phil., 27; 53 Off. Gaz., 7247.