BARTOLOME GUIRAO, PLAINTIFF AND APPELLANT, VS. EVARISTO VER, DEFENDANT AND APPELLEE.

Plaintiff-appellant,
a practicing lawyer, brought an action for recovery of his fees from
defendant-appellee for professional services rendered to the latter in
a certain civil case in Ilocos Norte. The complaint, docketed on April
11, 1957, alleged that the services were rendered from January 9, 1948
to January 31, 1950, and had a reasonable value of P2,995.00.

Defendant moved to dismiss on the ground that the cause of action was
barred by the statute of limitations, citing Article 1145 of the Civil
Code which provides that an action upon an oral contract must be
commenced within six (6) years. The motion was posted as registered
mail in Manila on May 6, 1957, and was received by the Court in Laoag,
Ilocos Norte, the following May 10, on which date also plaintiff
received the copy sent to him. At the hearing of the motion on May 11,
as set by defendant himself, plaintiff did not appear; and on the same
day the Court issued an order dismissing the complaint on the ground
relied upon by defendant. Copies of the order, however, were received
by plaintiff on May 23, 1957, and by defendant on or about the same
date, or at any rate after May 20.

Without knowledge that such order had been issued, plaintiff filed on
May 16, 1957 an opposition to the motion to dismiss, and on May 17 a
motion for leave to file an amended complaint, followed by the amended
complaint itself on May 18. The principal amendments consisted in the
new allegations “that the payment of the professional fees of the
plaintiff is premised on the basis of a contingent fee, depending upon
the successful termination of the case; and that said case had been
finally decided in favor of the defendant on or about October 1956.”

The amended complaint would thus remove
the cause of action from the operation of the statute of limitations.
On May 20, 1957 defendant moved to strike it out as having been
prematurely filed, since his motion to dismiss the original complaint
was still pending resolution, (Actually the order of dismissal had been
issued as early as May 11, but as already observed the parties received
no notice thereof until May 23.) Nevertheless the court denied the
motion for leave to file the amended complaint on the ground that it
had “no more jurisdiction to entertain the same in view of the fact
that the original complaint had already been previously dismissed.”
Plaintiff’s subsequent motion to reconsider both the order of dismissal
and the order rejecting the amended complaint having been denied, he
appealed to the Court of Appeals, which thereafter certified the case
to Us, the question involved being purely legal.

The appeal is manifestly meritorious for several reasons: (1) The court a quo
had not lost jurisdiction over the case simply because it had issued
the order of dismissal dated May 11, 1957. The parties had not yet
received copies of said order; and even after such receipt the order
would become final only upon the expiration of the period of thirty
days within which to appeal therefrom, expired (Rule 36, sec. 2, in
relation to Rule 41, sec. 3). Within such period the court could still
reconsider its order. (2) Under Rule 10, sections 1 and 2, a pleading
may be amended by correcting a mistaken or inadequate allegation or
description so that the actual merits of the controversy may speedily
be determined, without regard to technicalities, and in the most
expeditious and inexpensive manner; and a party may amend his pleading
once as a matter of course at anytime before a responsive pleading is
served. A motion to dismiss is not a responsive pleading within the
meaning of this rule, and the pendency of such motion does not affect
plaintiff’s right to amend his complaint. (3) The amendments sought to
be introduced by plaintiff were not inconsistent with the allegations
in his original complaint, but were obviously intended to clarify the
intrinsic ambiguity in them with respect to the time of the accrual of
his cause of action, For to say, as plaintiff did, that he rendered
professional services to defendant from 1948 to 1950 did not
necessarily mean that he could have demanded payment therefor
immediately so as to warrant judicial redress in case of defendant’s
refusal to pay. His right to such fees being contingent in nature, it
depended upon the final result of the litigation, which according to
the amended complaint terminated only in 1956.

The orders appealed from are set aside and the case is remanded to the Court a quo
for further proceedings on the basis of plaintiff-appellant’s amended
complaint dated May 18, 1957. Cost against defendant-appellee.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala, Bengzon, J.P., Zaldivar, and Sanchez, JJ., concur.