HIPOLITA ASEJO, PLAINTIFF AND APPELLANT, VS. BONIFACIO LEONOSO, DEFENDANT AND APPELLEE.

This is an appeal from an order of the Court of First Instance of Masbate,
the Honorable Judge Vicente Varela presiding, dismissing the complaint on the
ground that “the plaintiff had previously waived all her rights and claims over
the property in question.” This was a second order, modifying or replacing the
first which gave as reason for the dismissal, that the plaintiff lacked legal
capacity to sue.

The suit has been brought by Hipolita Asejo against Bonifacio Leonoso to
recover, under a first cause of action, a parcel of land planted with coconut
trees and, under a second cause of action, the value of its products. Another
action had previously been instituted by the present defendant, Bonifacio
Leonoso, against the present plaintiff and three others, all relatives of
Hipolita Asejo’s deceased husband. The purpose of the first action was to
foreclose a mortgage constituted on the land that is the subject matter of the
second. The first suit was not decided on the merits. Although the decision
“absolved the defendant, without costs,” it was in reality a dismissal of the
complaint without prejudice, on the ground that the judicial administrator of
the mortgagor’s estate was not made defendant.

The dismissal of the case at bar was ordered on a motion for that purpose,
which alleges three of the grounds enumerated in Section 1 of Rule 8. One of the
grounds so alleged is that the plaintiff’s demand has been released. This
remains as the sole basis of the dismissal. The objection that the plaintiff has
no legal capacity to sue has, it seems, been given up as unfounded, as indeed it
is.

Sections 3 and 4 of Rule 8 outline the procedure in cases where one or more
of the grounds of dismissal are asserted. Two courses are open: (a) to
deny or grant the motion or allow amendment of pleading; (b) to “defer
the hearing and determination of the motion until the trial if the ground
alleged therein does not appear to be indubitable.” Any of the grounds to
dismiss which has not been brought before the court by motion may be pleaded as
an affirmative defense. In either case there must be a hearing. And of necessity
the hearing, although called preliminary, should be conducted as ordinary
hearings: the parties should be allowed to present evidence and the evidence
should be taken down. Otherwise in the event of appeal from an order of
dismissal, as in this case, the appellate court would have no means to judge the
legality of the proceedings and the sufficiency of the proofs on which the order
is predicated. If after the hearing the court is of the opinion that the ground
alleged in the motion to dismiss or in the answer is not indubitable, it shall
defer the determination of the question until the trial.

The lower court dismissed the complaint on the strength of Exhibit B. What
legal or evidentiary force does this exhibit possess? Is it “indubitable”
necessitating no extraneous evidence? “Indubitable” is variously defined in 42
Corpus Juris Secundom, 1370 as “something which cannot be doubted; also certain
and unquestionable; without doubt.”

Exhibit B is in the nature of a quitclaim deed by which Hipolita Asejo and
her coheirs are said to have renounced all rights and interests in the property
mortgaged by Asejo’s deceased husband to Bonifacio Leonoso. It was introduced in
evidence in the mortgage foreclosure suit. In that case, according to the
decision rendered therein, Hipolita Asejo testified, among other things, that
there had been an agreement entered into in the month of March 1935 between her
and Leonoso, stipulating that the latter should reimburse himself for the amount
of his credit out of the products of the mortgaged land, possession of which had
been turned over by her to the mortgagee. The court did not give credit to that
testimony, saying that it was belied by Exhibit B. The decision commented that
Asejo’s oral evidence could not prevail over Exhibits A and B.

Exhibit B does not, in and of itself, establish beyond doubt the truth of the
transaction recited therein. Although it purports to have been subscribed and
sworn to before a justice of the peace, it does not preclude the possibility
that, for some reason or other, it does not reflect the real intention of the
plaintiff. The document is not one to which no possible objection could be made,
however trivial. For once, the plaintiff at bar repudiated it in one of her
pleadings in the prior case, in which she was a defendant, stating that “If she
ever did give her consent at all (to that document), such consent must have been
obtained by the plaintiff (defendant herein) by means of fraud and deceit,” The
bringing of the suit is itself a clear manifestation of her negation to
recognize the binding effect of Exhibit B. Under the circumstances, it would
have been better practice to postpone consideration of this matter until the
trial.

The plaintiff should at least have been accorded a hearing. This is the least
she is entitled to. And this is true regardless of any strong opinion the court
may have as to the truthfulness of the document. No such hearing was held.
Without hearing the plaintiff would be barred from pursuing her action and is to
be deprived of what she claims to be her property without being given an
opportunity to affirm or deny the validity of Exhibit B.

Perhaps His Honor relied on the finding of the court in the case for the
foreclosure of the mortgage. If the court a quo took that finding as
concluding the present demand, it is gravely mistaken. The first case, it has
been seen, was dismissed without prejudice. According to Section 44 of Rule 39,
the order or judgment of a court is conclusive between the parties only on the
matter directly adjudged. And Section 45 of the same Rule provides that that
only is being conclusively adjudged in a former judgment which appears upon its
face to have been so adjudged, or which was actually and necessarily included
therein or necessary thereto. There was no adjudication whatsoever in the
previous case. The dismissal left the parties in status quo.

The court’s finding of fact in the previous case was a surplusage. There was
no need to make it. Even if the court thought it proper or necessary to state
its opinion on the evidence, the opinion could not produce any adverse effect on
the rights of the defendants over the property in controversy in the face of the
dismissal of the complaint which is the controlling part of the decision.

In view of these considerations, the appealed order of dismissal is reversed
and the case is remanded to the court of origin for further and appropriate
proceedings in accordance with this decision, with costs of this appeal charged
to the appellee.

Paras, Pablo, Perfecto, Bengzon, and Hontiveros,
JJ., concur.