MARIA RAMOS, PETITIONER, VS. SANTIAGO OSORIO AND THE HONORABLE COURT OF APPEALS, RESPONDENTS.

This is an appeal from a
decision of the Court of Appeals in CA-G.R. No. 19970-R entitled Santiago
Osorio, Plaintiff-Appellant vs. Maria Ramos, assisted by her husband, Vicente
Cruz, Defendant-Appellee.

On May 29, 1956, the Court of First Instance of Manila rendered a
decision in Civil Case No. 25421 entitled Santiago Osorio vs. Maria Ramos, et
al., dismissing plaintiff’s complaint and, in relation to defendant’s
counterclaim, sentencing him to pay said defendant the amount of P776.00, with
interest thereon at the legal rate from January 1, 1952 until full payment
thereof.  The P776.00, according to the
trial court, was the amount paid by Maria Ramos to Santiago Osorio in excess of
the legal rate, said court having found, in relation to the former’s
counterclaim, that the transaction between the parties was tainted with usury.

From the above decision, Osorio appealed to the Court of Appeals
where on or before September 1959 the record of the case was lost (CA-G.R. No.
19970-R).  The Court of Appeals, however,
was duly informed thereof only on August
24, 1962.

It is not disputed that on July 12, 1961, the Court of Appeals dismissed Osorio’s
appeal because of his failure to take the necessary steps for the completion of
the record within the time to him given for that purpose.  On August
18, 1961, obviously because of a motion for
reconsideration filed by Osorio, the Court of Appeals issued a resolution
reaffirming its former resolution of July 12, 1961 dismissing his appeal.  It appears, however, that on October 12,
1961, resolving another motion filed by Osorio for the admission of the
transcript submitted by him and for
a reinstatement of his appeal, the Court of Appeals set aside its previous resolutions
of dismissal of July 12 and August 18, 1961, reinstated Osorio’s appeal, and subsequently
rendered the appealed decision which modified that of the Court of First
Instance of Manila by setting aside that portion thereof providing for the
refund of usurious interests paid.  The
present appeal interposed by petitioner Maria Ramos refers only to that portion
of the decision of the Court of Appeals modifying the decision of the trial court as above-mentioned,
claiming firstly, that when said court issued its resolution of October 14, 1961 setting aside
its previous resolutions of July
12 and August 18 of the same year, it had already lost jurisdiction over the
case because said resolutions dismissing Osorio’s appeal had already become executory and, secondly; that the Court of Appeals likewise
erred in setting aside, on the ground of prescription, the decision of the
Court of First Instance of Manila insofar as it sentenced Osorio to refund to
petitioner the sum of P776.00, for the reason that Osorio had not pleaded said
defense in the Court of First Instance.

The record
discloses that one of the affirmative
defenses interposed by petitioner Maria Ramos as defendant in Civil Case No.
25421 of the Court of First Instance of
Manila was that the transaction between her and the therein plaintiff Santiago
Osorio was usurious and that she had actually paid the latter interests above
the rate authorized by law.  She also
interposed in her answer a counterclaim for the recovery of the usurious
interests paid by her to Osorio amounting to the total sum of P776.00 (Record
on Appeal, Pages 12-16).

Santiago Osorio filed a reply to the answer of the
defendant, which included his own answer to the latter’s counterclaim.  Nowhere in said pleading, however, did he
plead the defense of prescription as far as the amount of P776.00 claimed in
Maria Ramos’ counterclaim was concerned. 
It was only in the Court
of Appeals (CA-G.R. No. 19970–R) that he
raised such defense in the third
assignment of error submitted in his brief as
plaintiff-appellant.

It is settled law in this
jurisdiction that the defense of prescription is waivable,
and that if it was not raised as a defense in the trial court, it cannot be
considered on appeal, the general rule being that the appellate court is not
authorized to consider and resolve any question not properly raised in the lower
court (Subido vs. Lacson 55
O.G., 8281, 8285; Moran, Comments on
the Rules of Court, Vol. I, p. 784, 1947 Edition).

Our conclusion,
therefore, is that the Court of Appeals erred in setting aside the decision of
the Court of First Instance of Manila in Civil Case No. 25421 sentencing the
herein respondent Santiago Osorio to pay the herein petitioner Maria Ramos the
sum of P776.00.

In the light of the above
conclusion, We do not find it necessary to resolve the
other question raised by petitioner in her brief.

WHEREFORE, the appealed decision is modified by eliminating therefrom the portion thereof setting aside the decision of the Court of First Instance of Manila sentencing herein respondent Santiago Osorio to pay petitioner Maria Ramos the sum of P776.00, and affirming instead
the decision of said Court of First Instance on the matter.  With costs.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro,
Fernando, Teehankee, Barredo,
Villamor, and Makasiar, JJ., concur.