LEVY HERMANOS, INC., PLAINTIFF AND APPELLANT, VS. DIEGO PEREZ, DEFENDANT AND APPELLEE.

Appeal from an order of the Court of First Instance of Negros
Occidental, dismissing plaintiff’s complaint upon defendant’s motion on
the ground of prescription.

Plaintiff’s complaint, which wag filed by it in the Municipal Court
of the City of Bacolod on July 18, 1956, was, on April 18, 1958,
reproduced in the court of record below after the defendant had
perfected his appeal from the decision of the inferior court. The
complaint alleges, among other things, that in Civil Case No. 8784 of
the Court of First Instance of Negros Occidental, entitled “Levy
Hermanos, Inc. vs. Diego Perez”, judgment was rendered on
August 23, 1941, sentencing defendant Diego Perez to pay plaintiff the
sum of P1,045.33 with interest at 10 per cent per annum from June 10,
1941 until full payment, plus costs, and that a Packard car of the
defendant was levied upon and sold at public auction on January 28,
1942, the proceeds of which were applied to the judgment debt, leaving
a balance of P957.47 still unpaid, which defendant refused to pay
notwithstanding repeated demands. The complaint, therefore, prays that
judgment be rendered ordering defendant to pay plaintiff the sum of
P957.47 with interest thereon at the rate of 10 per cent per annum from
January 28, 1942 until full payment, plus attorney’s fees and costs.

Instead of answering the complaint, defendant filed a motion to
dismiss on the ground of prescription, it being alleged that from
September 23, 1941, when the judgment sought to be enforced became
final, to July 18, 1956, when the complaint was filed, more than 10
years required by law within which court action must be filed had
already elapsed.

Considering that from August 23, 1941, “the date of the decision
sought to be revived”, to April 18, 1958, when the present action was
“filed”, 16 years, 7 months and 25 days had already elapsed, and
holding that the Debt Moratorium Law was in force only from March 10,
1945 up to July 26, 1948—a period of 3 years, 4 months and 16 days—the
lower court, on June 2, 1958, issued an order dismissing plaintiff’s
complaint. From that order, plaintiff appealed directly to this Court.

An action upon a judgment must be filed within ten years from the
date the judgment became final. (Articles 1144 and 1152, new Civil
Code; Moran, Rules of Court, Vol. 1, 1957 ed., p. 541.) In the present
case, it is not disputed that the decision against the defendant in
Civil Case No. 8784 sought to be enforced was rendered on August 23,
1941 and the same became final on September 28, 1941. Between that
latter date and the filing of the present action on July 18, 1956 in
the Municipal Court of Bacolod City, 14 years, 9 months and 25 days had
elapsed. Following the theory of the lower court that the debt
moratorium did not suspend the running of the prescriptive period for
more than 3 years, 4 months and 16 days, it would seem that the action
has already prescribed. This Court, however, has also held that in the
case of a war sufferer the debt moratorium must be considered to have
been in force from March 10, 1945 up to May 18, 1953—a period of more
than 8 years—and to have had the effect of suspending the statute of
limitations for that period. (Tioseco vs. Day, et al., G. R. No. L-9944, April 30, 1957; see also Rio y Compañia vs. Sandoval, et al., 100 Phil., 407; 53 Off. Gaz. 7705; Pacific Commercial Co. vs.
Aquino, 100 Phil, 961; 53 Off. Gaz. [12] 4067,) On the supposition,
therefore, that defendant is a war sufferer, it is apparent that the
present action was instituted in court within the prescriptive period
of 10 years.

Plaintiff-appellant claims in its brief that defendant-appellee in
thev proceedings below did not deny having filed a claim with the War
Damage Commission and is therefore a war sufferer. The latter, on the
other hand, has not filed his brief, and the order complained of does
not contain enough findings to verify the truth of
plaintiff-appellant’s allegation. In the circumstances, we hold that
the ground of prescription alleged in defendant-appellee’s motion to
dismiss does not appear to be indubitable. The lower court should have,
therefore, deferred action on said motion until after trial on the
merits in order to do justice to plaintiff. (Rule 8, sec. 3, Rules of
Court; Cordova, et al. vs. Cordova, et al., G. R. No. L-9936, January 14, 1958.)

Wherefore, the order of dismissal appealed from must be, as it
hereby, reversed, and the case ordered remanded to the court below for
further proceedings.

Without costs.

Paras, C. J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, Endencia, and Barrera, JJ., concur.