INTESTATE ESTATE OF THE LATE MARIA DE LA CRUZ. MARGARITA DE LA CRUZ, PETITIONER AND APPELLEE, VS. PLARIDEL SURETY & INSURANCE CO., OPPOSITOR AND APPELLANT.

In the Intestate Estate of the late Maria de la Cruz (Special
Proceedings No. 11-J of the Court of First Instance of Nueva Ecija)
herein appellee Margarita de la Cruz filed a motion dated April 28,
1957 for an order requiring appellant Plaridel Surety and Insurance Co.
Inc., as surety for Teodorico Adsuara, the former Administrator, to pay
the latter’s liability in favor of said estate in the sum of P2,413.00.
The Court, however, denied the motion on April 29, 1957, on the ground
that it was not the proper remedy”.

On November 28 of the
same year, appellee filed a motion for the reconsideration of said
order. This was granted by the court in its order of December 9 whereby
it set aside the order of denial aforesaid and granted appellee’s
original motion of April 28, 1957 by directing herein appellant to pay
to the then incumbent administrator the sum of P2,413.00 within 30 days
from notice. Subsequently, upon motion of appellant, the Court
suspended its order of December 9 and allowed it to file an opposition
to appellee’s motion for reconsideration. Thereafter, appellant filed
two separate oppositions alleging that (1) the order of denial of April
29 had become final without appellee having appealed therefrom; (2)
that it cannot be held liable under its bond unless its liability had
been previously determined by proper accounting in which it should have
been allowed to intervene; (3) that a separate action should be
maintained against the principal and surety; and (4) that the bond was
not answerable for Adsuara’s obligation, the same having been incurred
prior to the effectivity of said bond.

On February 28, 1958, the Court issued an order, the dispositive portion of which is as follows:

“Wherefore, this Court hereby reconsiders its order dated April 29,
1957 and resets the hearing on the motion filed by the administrator on
April 28, 1957 on March 14, 1958, at 8:30 o’clock in the morning.”

On the date set forth in the above-quoted order, appellant’s counsel
appeared but, instead of going on with the hearing, he manifested his
intention to appeal from said order. In fact, on the same date he filed
his Notice of Appeal and complied with the other requirements to
perfect his appeal.

The main issue to be resolved is whether the order appealed from should
be set aside on the ground that when appellee filed her motion for
reconsideration on November 28, 1957, the order sought to be
reconsidered dated April 29 of the same year had already become final
and executory.

The lower court held in the order appealed from that its order of April
29, 1957 was merely interlocutory because, instead of deciding the
merits of the motion of the administrator to compel appellant to
satisfy the liability of the former administrator, said order denied
the motion aforesaid on the ground that it was “not the proper remedy”.

It must be borne in mind in this connection that what really determines
whether a judgment or an order is final or merely interlocutory is
whether it puts an end to the litigation (Olsen & Co. vs. Olsen 48 Phil. 238) or leaves something to be done therein on the merits (Hodges vs. Villanueva, 90 Phil., 255, Gequillana vs.
Buenaventura 87 Phil., 300; 48 Off. Gaz., 63). Thus, an order of
dismissal of an action is final in character and not merely
interlocutory, “while an order denying a motion to dismiss is merely
interlocutory. In our opinion the lower court’s order of April 29,
1957- denying appellee’s motion of April 28, 1957- which appellee
sought to have reconsidered, was final in character because it was a
final disposition of the matter involved in the motion aforesaid. That
order denied the administrator’s motion. Consequently, the latter’s
remedy was to appeal therefrom, specially because said order was
manifestly erroneous, it being well settled in this jurisdiction that
the liability of a surety upon the bond filed in favor of the executor
or administrator of the estate of a deceased person is enforceable in
the same probate proceeding after hearing all the parties concerned.
Appellee, however, failed to seek remedy by appeal and instead allowed
seven months to elapse before filing her motion for reconsideration on
November 28, 1957. At that time, it seems obvious, the order of denial
had already become executory.

We hold, therefore, that the
lower court committed a reversible error in issuing the appealed order
of February 28, 1958, reconsidering the aforesaid executory order and
resetting for hearing the same matter which had already been finally
disposed of.

Wherefore the order appealed from is set aside, with costs.

Bengzon, C.J., Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes, and Makalintal, JJ., concur.