JOSE PEREZ CARDENAS, PLAINTIFF AND APPELLEE, VS. PEDRO CAMUS, DEFENDANT AND, APPELLANT.

On May 26, 1941 appellant Pedro Camus, with appellee J. Perez
Cardenas as guarantor in solidum, executed in favor of Jose Garrido a
promissory note in the sum of P2,000.00 payable as follows:

“During the first twelve consecutive months
beginning June 1941, the sum of P360.00 in twelve equal installments of
P30.00, each installment to be paid on or before the fifth day of every
month;

“Then the balance of P1,640.00 in thirty-two equal
installments of P50.00 and one last installment of P40.00 beginning the
thirteenth month and consecutively thereafter, each installment to be
paid on or before the fifth day of every month;”

The note further provided that if any two installments were not
paid as stated therein, the whole unpaid principal shall forthwith
become due and payable.

Appellant and appellee having failed to pay as agreed upon, Garrido
instituted against them the corresponding action (Civil Case No. 21439)
in the Court of First Instance of Manila. As appellant could not be
served with summons, the case proceeded with respect to herein appellee
only, against whom decision was rendered for “the sum of P2,000.00,
with 6 per cent interest thereon from the filing of the complaint on
December 15, 1953, until its full-payment, plus the sum of P200.00 for
attorney’s fees.”

The above decision was affirmed by us on appeal and, after the case
was returned to the lower court for execution, appellee paid the total
sum of P2,910.00 in full satisfaction thereof. Thereafter appellee made
verbal as well as written demands for payment upon appellant and, as a
result thereof, in the month of September, 1958, the parties agreed
that appellant would pay appellee the total sum of P3,123.00 at the
rate of P25.00 every payday beginning from December 24, 1958. After
making three of these payments, however, appellant defaulted, thus
giving rise to the institution of the present action in the Court of
First Instance of Rizal to secure judgment as follows:

The answer filed by appellant; after admitting some material
averments of the complaint and denying others, alleged the following
affirmative defenses: .

“1. That under Rule 3, See. 1 (e) plaintiff cause
of action is barred by a prior judgment and by the statute of
limitations, he having failed to interpose a cross-claim against the
herein defendant in Civil Case No. 21439;

“2. That no moral
damages may be recovered as this case does not fall within those
enumerated in Art, 2219 of the Civil Code and no corrective or
exemplary damages can be interposed under Sec. 5, Arts. 2229-2233 of
the Civil Code as the case is not included therein aside from the fact
that plaintiff is not entitled to moral damages and therefore in
accordance with Art. 2234 of the Civil Code cannot claim for the same.

“3. That no attorney’s fees and expenses of litigation, other than
judicial costs, can be recovered under Art. 2203 as this case does not
fall within any of the exceptions mentioned therein.”

Issues having thus been joined, the case was set for trial on March
22, 1960 in accordance with the .notice of trial served upon the
parties under date of January 15, of the same year. However, on March
18, 1960, that is, four days before the date thus set for the trial of
the case, appellant filed a motion to dismiss the complaint on the
ground that (a) “the court had no jurisdiction over. the case, the
venue of the action having been improperly laid” and (b) “that
plaintiff’s cause of action is barred by prior judgment due to his
failure to interpose a cross-claim against the herein defendant who was
his co-defendant in Civil Case No. 21439 of the Court of First Instance
of Manila.” Appellant set this motion for hearing on Saturday, March
26, 1960, that is, four days after the date set for the trial of the
case on the merits. On the same day—March 18, 1960—appellant also filed
a, motion for continuance.

When the case was called for trial on March 18, nobody appeared for
appellant, and the lower court, after denying his motion for
continuance for lack of merit, received appellee’s evidence, and on
March 23, 1960 it rendered judgment as follows:

“WHEREFORE, the court renders judgment, one in favor
of plaintiff and against the defendant, by ordering the defendant Pedro
Camus to pay to plaintiff the total sum of P3,048.45, with legal rate
of interest thereon from the date of the filing of this case until
fully paid for; by ordering the same defendant to pay to plaintiff the
sum of P500.00 by way of attorney’s fees in this case; and for the
defendant to pay the costs. In view of the nature of this case and the
transaction involved, the court cannot grant any moral and correctional
damages.”

From the above judgment appellant took the present appeal claiming that the lower court committed the following errors:

“1. The lower court erred in ignoring defendant’s
motion to dismiss and failing to decide the same before trying and
deciding this

“2. The lower court erred in denying
defendant’s motion for continuance considering the fact that there was
a motion to dismiss still pending which challenged the very
jurisdiction of the court.

“3. The lower court erred in assuming jurisdiction, of this case when the venue of the action was improperly laid.”

The motion for continuance filed by appellant was correctly denied.
Aside from the fact that the granting or denial of a motion of such
kind is a matter within the sound discretion of the trial court, we
have to consider in this case the following circumstances: In the first
place, appellant had filed his answer to the complaint since January
12, I960, but it was only on March 18 of the same year, after having
been served with notice setting the trial of the case for March 22,
1960, that he filed his motion for continuance and his motion to
dismiss the complaint, the latter upon grounds substantially the same
as the affirmative defense set forth in his answer. In the second
place, the mere fact that appellant set the hearing of his motion to
dismiss on March 26, 1960, that is, four days after the date set forth
for the trial. of the case, when he could very well have set it for
hearing on this latter date, did not tie up the hands of the trial
court in the sense of giving it no other alternative but to grant the
continuance sought. In the third place, it is obvious that the motion
for continuance was intended to delay the trial and termination of the
case. In view of these circumstances, we cannot find our way clear to
disturbing the action taken by the lower court in the premises.

With respect to the motion to dismiss the complaint, it is true
that the record does not affirmatively show that the trial court had
decided it before receiving appellee’s evidence and rendering the
appealed, judgment. It must be observed, however, that, as already
adverted to, said motion was not only a mere reiteration of the
defenses set forth in the answer, but appellant set it for hearing four
days after the date fixed for the trial on the merits. Appellant had no
right to do so as a means of forcing upon the court and his opponent
the desired postponement of the trial. Moreover, after denying
appellant’s motion for continuance, it cannot be said that the trial
court was still under obligation to pass upon the motion to dismiss
which appellant set for hearing four days later.

To the foregoing must be added the further consideration that the
question of jurisdiction raised in the aforesaid motion is manifestly
unsubstantial. Jurisdiction over the subject matter is determined upon
the allegations made in the complaint, irrespective of whether the
plaintiff is entitled or not entitled to recover upon all or some of
the claims asserted therein—a matter resolved only after and as a
result of the trial. Neither can the jurisdiction of the court be made
to depend upon the pleas or defenses pleaded by the defendant in his
answer or motion to dismiss, for, were we to be governed by such rule,
the question of jurisdiction would depend almost entirely upon the
defendant.

As regards the alleged bar by prior judgment, we believe that the
same is also without merit. As stated heretofore, appellant could not
be summoned when, together with appellee, he was sued by Jose Garrido
in Civil Case No. 21439 of the Court of First Instance of Manila. This,
obviously, was not appellee’s fault at all. How could he be blamed for
not filing a cross-claim?

In view of all the foregoing, the decision appealed from is affirmed, with costs.

Bengzon, C. J., Padilla, Labrador, Concepcion, Barrera, Paredes, Regala, and Makalintal, JJ., concur.