CLEMENTE A. LAZARO ET AL., PLAINTIFFS AND APPELLANTS, VS. FELICIANA MARIANO ET AL., DEFENDANTS. CARMEN JULIANA GARRICHO AND FRANCISCO AGUADO, APPELLEES.

This is an appeal taken by the plaintiffs
Clemente A. Lazaro and Maria Simon from the judgment rendered by the
Court of First Instance of Nueva Ecija, with respect to the defendants’
Carmen Juliana Garricho and Francisco Aguado, the dispositive part of
which reads as follows:

“The court is of the opinion that it should decide
and it hereby decides this case by declaring null and void, the deed
Exhibit A, executed by the defendant Feliciana Mariano de Sarangaya and
cancelling the original certificate of title No. 9303, in the name of
the said defendant. The register of deeds of Nueva Ecija is hereby
ordered to issue a certificate of title in the name of the plaintiffs,
noting thereon, however, the mortgage liens evidenced by the deeds
Exhibits B and C in favor of the defendants Carmen Juliana Garricho and
Francisco Aguado, who are hereby absolved from the complaint.

“The indemnity prayed for by the plaintiffs in their complaint is
hereby denied, with costs against the defendant Feliciana Mariano de
Sarangaya. So ordered.”

In support of their appeal, the appellants assign the following
alleged errors as committed by the court a quo in its decision, to wit:

“1. The lower court erred in not finding that the
annotation on original certificate of title No. 9303 of the order dated
July 2, 1929, dismissing civil case No. 5073 was illegal, null and
void, and could not be considered a cancellation of the notice of lis pendens for the reason that it was made on July 30, 1929, before said order had become final.

“2. The lower court likewise erred in not finding that the appellees
acted in bad faith in executing the deeds of mortgage Exhibits B and C.

“3. The lower court also erred in not declaring said Exhibits B and C null and void with respect to the appellants.

“4. The lower court again erred in denying the motion for new trial filed by plaintiffs-appellants.”

The following pertinent facts, which have been established at the
trial by a preponderance of evidence, are necessary for the
determination of the questions raised in this appeal, viz,:

On November 26, 1928, the herein plaintiffs-appellants Clemente A.
Lazaro and Maria Simon filed a complaint, docketed as civil case No.
5073 of the Court of First Instance of Nueva Ecija, against the herein
defendant Feliciana Mariano (alias Feliciana Mariano Vda. de
Sarangaya, and Feliciana Mariano Sarangaya), praying upon the facts
alleged therein, that the contract of sale Exhibit A be declared
rescinded and that an order be issued directing the cancellation of
certificate of title No. 9303 of the registry of deeds of Nueva Ecija
and the issuance of another in lieu thereof in the name of the said
plaintiffs-appellants.

On the said date of November 26, 1928, at 11.03 a. m., 8 notice of lis pendens
was filed in the office of the register of deeds of Nueva Ecija, which
notice was noted on the back of said certificate of title No. 9303.

On July 2, 1929, the aforementioned civil case No. 5073T was called
for hearing. Inasmuch as the plaintiffs failed to appear and their
counsel was not ready for trial, the court, upon petition of the
defendant’s counsel, dismissed the case (Exhibit I-C).

On July 27, 1929, the plaintiffs filed a motion for reinstatement
(Exhibit I-E), which was denied in an order dated September 11, 1929
(Exhibit I-F).

On July 30, 1929, the order of dismissal dated July 2, 1929, was noted on the back of said certificate of title No. 9303.

On September 23, 1929, Feliciana Mariano, the defendant in the
aforesaid civil case No. 5073, constituted two mortgages on the parcel
of land described in the aforementioned certificate of title No. 9303,
in favor of the herein defendants-appellees Carmen Juliana Garricho and
Francisco Aguado: the first mortgage for the sum of P10,000 (Exhibit B)
and the second for
P
6,500 (Exhibit C).

The first question to be decided in this appeal, which is raised in
the first assignment of error, is whether or not the notation of the
order of dismissal of civil case No. 5073 on the back of the
certificate of title No. 9303 is legal and valid and operated as a
cancellation of the notation of the notice of lis pendens.

As will be seen from the statement of facts above given, the
dismissal of the complaint in civil case No. 5073 was due to the
failure of the therein plaintiffs, who are also the plaintiffs in this
case, to appear before the court when the said case was called for
trial on the date set therefor, and to their counsel’s statement made
in open court that he was not ready to proceed with the case. Section
127, case 2, of the Code of Civil Procedure, provides that the court
may dismiss an action when the plaintiff fails to appear at the time of
trial, and the defendant appears and asks for the dismissal; in which
case the said dismissal shall not be a bar to another action for the
same cause (section 581, California Code of Civil Procedure). By
provision of law, such dismissal does not therefore give to the subject
matter so dismissed, the character of res judicata and
consequently the order of dismissal does not finally determine the
controversy and is not appealable, in accordance with the provisions of
section 123 of the same Code. The order dismissing a case upon petition
of the defendant by reason of the plaintiff’s failure to appear, not
being appealable, the provisions of the Code of Civil Procedure
relative to the period for, and the steps to be followed in, the filing
and perfection of an appeal are not applicable, and the plaintiff has
no other remedy but to ask for the reinstatement of the case or to file
another complaint upon the same cause. Upon failure to resort to either
remedy, there will be no pending case before the court, which may be
noted in the registry of deeds.

The notation of the order of dismissal issued in civil case No.
5073, which eliminated it from the court’s docket, operated as a
cancellation of the notation of the pendency thereof (38 Corpus Juris,
p. 40, sec. 65). At any rate, due to the delay in the filing of the new
complaint, which was done on June 10, 1930, the dismissal having taken
place on July 2, 1929, the herein plaintiffs-appellants lost the
benefit of the lis pendens (38 Corpus Juris, p. 40, sec. 66).

The other assignments of error, being mere corollaries of the first
assignment, need not be passed upon, inasmuch as the questions involved
therein have already been implicitly determined by the resolution of
the legal question raised in the aforesaid first assignment of error.

In view of the foregoing, this court is of the opinion and so holds:
(1) That the order dismissing a civil case, upon petition of the
defendant by reason of the plaintiffs failure to appear, is not final
and does not constitute res judicata, and therefore, hot
appealable; and (2) that the dismissal of a civil case upon petition of
the defendant by reason of the plaintiff’s failure to appear, operates
as a cancellation of the notation of lis pendens.

Wherefore, not finding any error in the appealed judgment, it is
hereby affirmed in toto, with costs against the appellants. So ordered.

Malcolm, Hull, Imperial, and Goddard, JJ., concur.