CECILIA ORTIZ ET AL., PLAINTIFFS AND APPELLEES, VS. ALEJANDRO BALGOS, DEFENDANT AND APPELLANT.

Defendant appeals from a judgment of the Court of First Instance of
Capiz, awarding the plaintiffs the sum of P33,991.23 and assigns as the
principal error committed by the trial court the action taken in not
allowing the defendant to present his evidence at the trial of the case.

The plaintiffs are the owners of a considerable tract of land
situated in the municipality of Panay, Province of Capiz. On January
20, 1922, the representative of the plaintiffs leased this land to
Fortunato Tinsay. The latter, in turn, on September 7,1922, subleased
the property to Alejandro Balgos. In a notarial document of
approximately the same date, Balgos made himself responsible for the
oblir gations contracted by Tinsay.

In 1926, the plaintiffs instituted the present action based on tbe
contracts of lease of their property against Alejandro Balgos. He
interposed a demurrer to the complaint on three grounds, including an
alleged defect of parties defendant. This demurrer was overruled.
Thereupon, the defendant presented an answer in which as a special
defense there was reiterated the failure of the complaint to include
Fortunato Tinsay as a necessary defendant.

The case was called for trial and proceeded to the point where
counsel for the plaintiffs announced that he had closed the
presentation of his evidence. Immediately counsel for the defendant
asked for dismissal because of the obstinacy of the plaintiffs in
omitting as a defendant, a very necessary party. This motion was denied
by the trial judge. After a recess and when the court had reconvened,
counsel for the defendant announced his readiness to present his
evidence. But the attorney for the plaintiffs registered his
opposition, citing two decisions of this court. The trial judge, ruling
on the matter, decided that the defense was without right to submit
evidence. A motion for reconsideration was also denied. After the
rendition of judgment predicated on plaintiffs’ evidence, a motion for
a new trial, supported by affidavits, met the same fate.

The two cases cited by counsel for the plaintiffs and relied upon by
the trial judge when he ruled against the right of the defense to
present evidence, were Demeterio vs. Lopez ([1927], 50 Phil., 45), and
Moody, Aronson & Co. vs. Hotel Bilbao ([1927], 50 Phil., 198). The
case first mentioned was an election contest, and there it was held
that if the protestee presents a motion for dismissal or a demurrer to
the evidence introduced by the protestant after the latter has rested,
he thereby impliedly waives his right to present his own evidence; and
if the ruling on his motion or demurrer is adverse, he cannot be
permitted to present such evidence as he may have, and the trial court
must finally decide the contest. In the case last mentioned, the
doctrine announced was that the defendant who, after the plaintiff has
submitted his evidence, makes a motion to dismiss which the trial court
in a decision grants, and on appeal of the plaintiff, has the judgment
reversed, cannot then be permitted to produce evidence in defense.

While the trial judge is to be commended for his zeal in endeavoring
to follow the decisions of this court, yet he seems to have
misunderstood the principles announced in these two cases. Neither case
is here controlling. There has not been interposed a demurrer to the
evidence, or motion for dismissal because of the insufficiency of
plaintiffs’ evidence. All that the defendant did was, for the third
time, to complain of the trial proceeding without the joinder of
another party as defendant. While the position taken by the defendant
appears legally unsustainable (Civil Code, articles 1550 et seq.),
altho it might have been better for all concerned to have brought in
Tinsay as a party defendant, nevertheless, the motion made by the
defendant could be decided as a legal question. Once such motion was
denied, there was no reason why, in all fairness, the defendant should
not be permitted to present his evidence.

Agreeable to the foregoing pronouncements, the judgment appealed
from will be set aside, and the record will be remanded to the court of
origin, where the trial will proceed to conclusion from the point where
it was interrupted by the order of the trial judge which prohibited the
defendant from submitting evidence. Without special pronouncement as to
costs in this instance, it will be so ordered.

Avanceña, C. J., Johnson, Street, Ostrand, Johns, Romualdez, and Villa-Real, JJ., concur.