MARC DONNELLY, PETITIONER, VS. COURT OF FIRST INSTANCE OF MANILA AND RODOLFO VILLAVICENCIO, RESPONDENTS.

Marc Donnelly versus Court of First Instance of Manila and Rodolfo Villavicencio

The Case

This is Marc Donnelly against the Court of First Instance of Manila and Rodolfo Villavicencio. Donnelly asks the Supreme Court to reverse the dismissal of his action to revive a dormant judgment. The trial court dismissed the revival suit on the ground that it had prescribed. The case matters because it fixes the rules on the prescriptive period for reviving a judgment, on the interruption of that period by the filing of the first revival action, and on the effect of a dismissal without prejudice. It also touches on the tolling of prescription when the defendant's whereabouts are unknown.

Procedural History

The story begins in the Court of First Instance of Manila, in an action for foreclosure of a chattel mortgage. Judgment was rendered for Donnelly on his counterclaim. Villavicencio and his surety appealed to the Court of Appeals, which affirmed the trial court. Final judgment was entered by the appellate court, and the record was remanded to the court of origin for execution.

Donnelly later filed a first action to revive the judgment, but summons could not be served on Villavicencio. The trial court dismissed that action for failure to prosecute, but the dismissal was without prejudice. Donnelly then filed a second action to revive the same judgment. The trial court dismissed this second case on the ground of prescription, and denied reconsideration. Donnelly came to the Supreme Court by petition for review by certiorari.

Facts

In the foreclosure case, the trial court ordered Villavicencio to pay Donnelly ten pesos per day from July 23, 1954, until delivery of the car subject of the action, and three hundred pesos as attorney's fees. The Court of Appeals affirmed on July 15, 1957. Final judgment was entered on August 5, 1957, and the record was remanded for execution. On September 3, 1957, the surety company delivered the car and paid two thousand four hundred pesos to Donnelly. As against Villavicencio himself, however, the writ of execution was returned unsatisfied.

On July 8, 1967, before ten years had lapsed from August 5, 1957, Donnelly filed a first action to revive the judgment, claiming nine thousand two hundred fifty pesos. Summons could not be served on Villavicencio despite due diligence. The court dismissed the action for failure to prosecute, but without prejudice. Donnelly received copy of that order on March 19, 1969.

On March 31, 1969, only twelve days later, Donnelly filed a second action to revive the same judgment. Again summons could not be served, as Villavicencio's whereabouts were unknown. Donnelly moved to serve summons by publication, on the theory that a revival action is quasi in rem. The court did not rule on the motion. Instead, it dismissed the case, holding that the revival action was instituted after the lapse of ten years from the finality of the judgment sought to be revived. Reconsideration was denied.

Issues

• Whether or not an action for revival of judgment is quasi in rem, so that service of summons may be effected through publication.
• Whether or not the second action for revival of judgment has already prescribed.

Applicable Provisions

Article 1144 of the Civil Code provides:

Article 1144. They must be brought within ten years from the time the right of action accrues: (1) Upon a written contract; (2) Upon an obligation created by law; (3) Upon a judgment.

This fixes the ten-year period within which a judgment may be revived by action.

Article 1155 of the Civil Code provides:

Article 1155. The prescription of actions is interrupted when they are filed before the court, when there is a written extrajudicial demand by the creditors, and when there is any written acknowledgment of the debt by the debtor.

This is the basis for holding that the filing of the first revival action interrupted the running of the period.

Article 1108 of the Civil Code provides:

Article 1108. Prescription, both acquisitive and extinctive, runs in favor of, or against, a person who is not capacitated to manage his own property, saving the exceptions established in this Code and in special laws. Prescription does not run against a person who is not capacitated to manage his own property, except in the cases expressly provided in this Code.

The Court invokes its second paragraph on the tolling of prescription when the defendant's address cannot with due diligence be ascertained and no property of his can be found.

Ruling

On the first issue, the Court held that the question was not a proper and justiciable issue in the proceedings, because the trial court never acted on the motion for service by publication. It dismissed the case on prescription instead. Nevertheless, the Court stated that an action to revive a judgment is a personal one, not quasi in rem.

On the second issue, the Court held that prescription had not set in. An action for revival of a judgment prescribes in ten years under Article 1144. The period is counted either from the date the judgment became final or from the date of its entry. Final judgment was entered on August 5, 1957, and the first revival action was filed on July 8, 1967, so only nine years, eleven months, and three days had elapsed. The filing of that first action interrupted the prescriptive period under Article 1155.

As to the second action, the Court held that when a case is dismissed without prejudice, the plaintiff may file his complaint against the same defendant in a separate action, even if the order has already become final. The second action was filed even before the dismissal order in the first case could become final, only twelve days after notice. In any event, the dismissal being without prejudice, the second action was still within the original ten-year period. At any rate, when the defendant's address cannot with due diligence be ascertained and no property of his can be found, the period of prescription is tolled under Article 1108. The trial court therefore committed a reversible error in dismissing the case on the ground of prescription.

Doctrine

An action to revive a judgment is a personal action, not one quasi in rem. It prescribes in ten years under Article 1144 of the Civil Code, counted either from the date the judgment became final or from the date of its entry. The filing of the revival action before the court interrupts the prescriptive period under Article 1155. A dismissal without prejudice leaves the plaintiff free to file a separate action against the same defendant, even after the dismissal order has become final. Finally, when the defendant's address cannot with due diligence be ascertained and no property of his can be found, prescription is tolled under Article 1108.

Disposition

The Supreme Court granted the petition. It set aside the trial court's orders of August 30, 1969 and October 25, 1969, and directed the trial court to send the case to the archives until the private respondent's address is known or any property belonging to him is found, with no pronouncement as to costs.

Remember This

Memorize this line: an action to revive a judgment is a personal action that prescribes in ten years, and its filing interrupts the period. Examiners use this case to test the counting of the ten-year period, the effect of a dismissal without prejudice, and the tolling of prescription when the defendant cannot be found.