IN THE MATTER OF THE INTESTATE ESTATE OF THE DECEASED FILOMENO NERY VELEZ. CASIMIRO TAMPARONG, CLAIMANT AND APPELLANT, VS. ROQUE V. NERY, ADMINISTRATOR AND APPELLEE.

The
question raised and to be decided in the appeal taken by Casimiro
Tamparong from the orders of the lower court dated July 7 and October
27, 1936, both of which were issued in civil case No. 4152 of the Court
of First Instance of Oriental Misamis entitled “In the Intestate estate
of the deceased Filomeno Nery Velez; Macaria V. de Nery, applicant,
Casimiro Tamparong, claimant; and Roque V. Nery, administrator” (G. R.
No. 46345), is whether or not the lower court erred in rejecting the
claim of appellant (Casimiro Tamparong) for the payment by said
administrator of the sum of P6,045 which, the former alleges, is the
amount of two loans which the deceased Filomeno Nery Velez had, during
his lifetime, obtained from him. The first order rejected the claim on
the ground that it was filed too late, while the second denied the
motion for reconsideration which appellant filed in accordance with the
provisions of section 113 of the Code of Civil Procedure on August 19,
1936 and affirmed the prior order in all respects.

Filomeno
Nery Velez died on September 3, 1931. On March 26, 1932 intestate
proceedings were commenced. The Court of First Instance of Oriental
Misamis appointed Roque V. Nery administrator and two commissioners t)
appraise the property left by the deceased and to decide on the claims
which might be filed against the estate. Subsequently appellant filed
his claims for the first time, consisting of one for P4,000 and another
for P2,225, the latter being the amount of P2,045 appearing in the
promissory note which the deceased had executed in his lifetime on
March 24, 1931 (Exhibit B) plus other minor amounts. The first claim is
based on a document which is alleged to be a mortgage (Exhibit A).
Acting upon said claims of appellant, the committee on claims and
appraisal approved the same on November 12, 1932 and on March 11, 1933.
Not satisfied with the resolution of the committee, the administrator
appealed therefrom on March 22. Instead of renewing his action by
filing the corresponding claim in accordance with the provisions of
sections 775 and 776 of Act No 190, appellant asked, on May 23, 1933,
or two months after the administrator brought his appeal, that the
latter be ordered to pay him his claim of P2,225. On June 30, of said
year, appellant filed a motion of which he sent a copy to the
administrator and appellee, stating that he abandoned his claim of
P4,000 in order to prosecute his credit of P2,225 alone inasmuch as he
had brought action in a separate case for the payment of his mortgage
credit of P4,000. Plaintiff and appellant referred to the complaint
filed on May 23, 1933 in case No. 4231 of the Court of First Instance
of Oriental Misamis entitled “Casimiro Tamparong, plaintiff, vs.
Intestate estate of the deceased Filomeno Nery Velez, defendant.” Said
case was then the second one brought by appellant to recover his
aforementioned credit of P4,000 from the judicial administrator of the
intestate estate of the late Filomeno Nery Velez. The first action
commenced by him was that which bore No. 200 and the same was decided
adversely to the plaintiff early in 1933 for the reason that it was
premature. Thereafter he commenced the second case, that is to say, the
one bearing No. 4231. He filed his complaint in said case on May 23,
1933, not only months but years before submitting anew in the intestate
estate of Filomeno Nery Velez, civil case No. 4152, his amended claim
of July 7, 1936 in which he again demanded payment of his mortgage
credit of P4,000 plus his mortgage credit of P2,225. It is clear,
therefore, that what appellant has done was to commence one case after
another for the purpose of collecting the same credits. When he
reproduced his claim for the last time in the aforementioned intestate
proceedings in order to recover said credits, cases Nos. 4200 and 4231
had long before been decided against him, and it must be observed that
he did not take any appeal from the judgments rendered against him
therein. If the first decision did not dispose of his claim upon its
merits, the second one did so and adversely to him. And this may be the
reason why he thought of having another recourse to the intestate
proceedings so as to reproduce his claim which could not prosper in the
aforesaid cases. The law does not countenance such a practice. When a
creditor who has a simple or mortgage credit against a deceased person,
elects to file his claim for the collection of said credit in the
intestate or testamentary proceedings of the deceased or to enforce the
same by ordinary action in a separate case, he cannot commence another
action for the same purpose after the first action brought by him has
been decided one way or the other, because such a procedure is not
allowed by section 708 of Act No. 190. The provisions of this section
permit him to make use of one of said remedies to collect his credit,
but not of both at the same time. If he chooses one, he must desist
from bringing the other; and if he loses in one, he loses in both.
(Osorio vs. San Agustin, 25 Phil., 404; Veloso vs. Heredia, 33 Phil., 306.)

There is, however, another matter that deserves attention. When the
committee on claims and appraisal approved appellant’s credits, one for
P4,000 and another for P2,225, for the second time on September 2,
1935, December 3, 1935 and December 16, 1935, and the administrator
appealed from the resolutions of said committee on January 30, 1936, of
which appeal appellant had timely notice on February 1, 1936, on which
said dates Act No. 4229 which amends section 776 of Act No. 190 was in
full force for the reason that it took effect on August 12, 1935,
appellant did not take any step nor reproduced his claim as required by
section 776 aforesaid, but did so only on July 7, 1936 or after the
lapse of five months and six days, when the period granted by law for
this purpose was no more than thirty days. Therefore, whether the
question be considered from the point of view above stated, that is to
say, whether appellant could proceed in the way he did, commencing one
suit after another for the prosecution of his two claims; or from the
second standpoint which is that of whether or not he filed his last
claim within the time prescribed by law, the conclusion which may be
reached is that his appeal should not and cannot prosper. In other
words, the orders appealed from are well-founded.

Wherefore, said orders are hereby affirmed in all respects, with costs against the appellant. So ordered.

Avanceña, C. J., Villa-Real, Imperial, Laurel, and Concepcion, JJ., concur.