MANUELA ADVINCULA, REPRESENTED BY HER GUARDIAN-ADLITEM, PURA BORBON, PLAINTIFF AND APPELLANT, VS. MANUEL, ADVINCULA, DEFENDANT AND APPELLEE.

Sometime in 1956, Manuela Advincula filed Civil Case No. 8553, CFI
of Iloilo, against Manuel Advincula, for acknowledgment and support. On
motion of both parties, said case was dismissed. On January 16, 1961,
Manuela Advincula filed the complaint under consideration against the
same Manuel Advincula, also for acknowledgment and support, Civil Case
No. 5659, same court. Instead of filing his answer, the defendant filed
a motion to dismiss, alleging that the dismissal of Civil Case No.
3553 barred the filing of the second complaint. The trial Court
dismissed the complaint on the ground that as the dismissal of Civil
Case No. 3553, was without reservation, the same was with prejudice.
The case was brought to this Court on appeal, the lone question of law
raised, is whether or not the dismissal of the former was with
prejudice.

The order of dismissal dated June 1, 1956, in Civil Case No. 3553, recites:

“A peticion de la demandante y su abogado, el Sr.
Gellada, por las razones alegadas en su mocion de fecha de hoy, que el
Juzgado cneuentra atondibles, y no habiendo objecion del abogado Sr.
Moreno en representaeion del demandado, se ordena el sobre seimionto
tanto de la demanda como de la reconvencion, sin costas.”

The order of dismissal dated August 29, 1961, in Civil Case No. 5659, states:

“Acting upon said motion, the Hon. Judge F. Imperial
Reyes dismissed the case on June 1, 1956 without any reservation of
‘without prejudice’. Hence, the dismissal entered in this case was with
prejudice. Pursuant to the provisions of the Rules of Court, the
dismissal entered by Judge Imperial Reyes is definite and with
prejudice and, consequently, said case could not be revived presently.”

There is no statement in the order of dismissal of the first case
(Civil No. 3553) that the dismissal was without prejudice. In
accordance, therefore, with Section 2, Rule 30, such dismissal is without prejudice. Said rule provides :

“Except as provided in the preceding section, an
action shall not be dismissed at the plaintiff’s instance save upon
order of the court and upon such terms and conditions as the court
deems proper. If a prior counterclaim has been pleaded by a defendant
prior to the service upon him of the plaintiff’s motion, the action
shall not he dismissed against the defendant’s objection unless the
counterclaim can remain pending for independent adjudication by the
court. Unless otherwise specified in the order a dismissal under this paragraph shall be without prejudice. A class action shall not be dismissed or compromised without the approval of the court. (italics supplied)

Notwithstanding the above provision, defendant-appellee and the
lower court, are of the impression that the rule which governs the
dismissal of case No, 3553 is Section 4 of Rule 30, to wit:

“Effect of dismissal on other grounds.—Unless otherwise ordered by the court, any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, operates as an adjudication upon the merits.” (Italics supplied)

The above quoted section, however, applies only when the dismissal
is based on grounds “not provided for in this rule”. Civil Case No.
3553, having been dismissed precisely on the ground provided for in
Section 2, Rule 30, said Section 4 of Rule 30, finds no application to
the present case.

Moreover, in both Civil Cases Nos. 3553 and 5659, the action of the
plaintiff was for acknowledgment and support. Judgment for support does
not become final. The right to support is of such nature that its
allowance is essentially provisional; for during the entire period that
a needy party is entitled to support, his or her alimony may be
modified or altered, in accordance with his increased or decreased
needs, and with the means of the giver. It cannot be regarded as
subject to final determination.

* * * a judgment rendered in a suit by a wife for
separate maintenance is not regarded as final, tout may be modified at
anytime for sufficient reasons upon tho application to the court * *
*.” (Gorayeb vs. Hashim, 47 Phil., 87).

“The amount
of support depends upon the needs of the party entitled as well as on
the capacity of the person bound to give support * * * and any sum
previously fixed shall be reduced or increased proportionally in
accordance with the increased or decreased needs of the party entitled
to support and of the means of the giver * * *.” (Gonzales vs. Gonzales, 43 Off. Gaz., 4691).

The new Civil Code provides that the allowance for support is
provisional because the amount may be increased or decreased depending
upon the means of the giver and the needs of the recipient (Art. 297);
and that the right to receive support cannot be renounced nor can it be
transmitted to a third person; neither can it be compensated with what
the recipient owes the obligor (Art. 301). Furthermore, the. right to
support can not be waived or transferred to third parties and future
support cannot be the subject of compromise (Art. 2035; Coral vs.
Gallego, 38 Off. Gaz., 3135, cited in IV Civil Code by Padilla, p.648,
1956 Ed.). This being true, it is indisputable that the present action
for support can be brought, notwithstanding the fact that the previous
case filed against the same defendant was dismissed; and it also
appearing that the dismissal of Civil Case No. 3553, was not an
adjudication upon the merits, as heretofore shown, the right of herein
plaintiff-appellant to reiterate her suit for support and
acknowledgment is available, as her needs arise. Once the needs of
plaintiff arise, she has the right to bring the action for support, for
it is only then that her cause of action accrues. The right to ask
support is demandable from the date in which plaintiff was in need of
the same (Marcelo vs. Estacio, 70 Phil., 215).

It is likewise contended that because the parties had asked for the
dismissal of the former case, on the ground that “plaintiff has lost
interest and is no longer interested in continuing the case against the
defendant, besides the plaintiff has no further evidence to introduce
in support of the complaint, with prejudice”, and because the order of
the lower court had stated that, “por las razones alegadas en su motion
de fecha de hoy, que el Juzgado encuentra atendibles, y no habiendo
objecion del abogado Sr. Moreno en representacion del demandado, se
ordena el sobreseimiento tanto de la demanda como de la reconvencion,
sin costas”, the dismissal was with prejudice. In other
words, it is argued that because in the motion the expression “with
prejudice” appear, the corresponding order granting the dismissal
necessarily constituted a dismissal with prejudice. While it is
conceded that the parties had placed the expression “with prejudice” in
the motion, which may be interpreted as expressive of a desire to have
the dismissal with prejudice, still it is a fact that the lower court
in its order reproduced above, did not state at all that the dismissal
was “with prejudice”, and in omitting that expression, said lower court
might not have wanted to dismiss the case with prejudice. The most that
could be said of such omission in the order, is that the lower court
wanted to keep silent about it. Moreover, the lower court ordered the
dismissal of the case on the grounds alleged in the said
motion and the ground are the “plaintiff has lost interest and is no
longer interested in continuing the case against the defendant”, and
“the plaintiff has no further evidence to introduce in support of the
complaint”. The expression “with prejudice” is not a ground; but it is
an effect which movants had intended and/or wanted to produce, if the
court had granted it.

It also appears that the former dismissal was predicated upon a
compromise. Acknowledgment, affecting as it does the civil status of
persons and future support, can not be the subject of compromise (pars.
1 & 4, Art. 2035, Civil Code). Hence, the first dismissal cannot
have force and effect and can not bar the filing of another action,
asking for the same relief against the same defendant.

In view hereof, and of the further reason that the grounds for the
order of dismissal appealed from are not indubitably the said order is
set aside and the case is remanded to the court of origin, for further
proceedings, with costs against the defendant-appellee Manuel Advincula.

Bengzon, C. J., Padilla, Bautista Angelo, Labrador, Barrera and Regala, JJ., concur.
Dizon and Makalintal, JJ., concur in the result.