G.R. No. L-8067; March 14, 1913
Ellsworth E. Zook, plaintiff-appellant, vs. Robert Coker, defendant-appellee.

FACTS

Ellsworth E. Zook filed an action against Robert Coker in the Court of First Instance of Rizal to recover a sum of money allegedly loaned. The trial was set for February 6, 1912. Zook failed to appear at the trial. The court, upon Coker’s motion, dismissed the action under paragraph 2, section 127 of the Code of Civil Procedure, which allows dismissal when the plaintiff fails to appear at trial and the defendant appears and asks for dismissal. Zook later paid the costs and filed a new suit for the same cause of action in the Court of First Instance of Manila. Coker’s answer included a special defense alleging that the prior dismissal constituted res judicata, barring the new action. Zook demurred to this special defense, arguing it did not state sufficient facts for res judicata. The trial court overruled the demurrer, citing Yangco vs. De Asis. Zook appealed.

ISSUE

Whether the trial court erred in overruling the demurrer, i.e., whether a dismissal under paragraph 2, section 127 of the Code of Civil Procedure for plaintiff’s failure to appear at trial constitutes res judicata and bars a subsequent action for the same cause.

RULING

No. The trial court erred. A dismissal under paragraph 2, section 127 of the Code of Civil Procedure, which specifically applies when the plaintiff fails to appear at trial and the defendant appears and asks for dismissal, is not a bar to another action for the same cause. The Yangco vs. De Asis case is distinguishable because there, the dismissal was based on the plaintiff’s voluntary abandonment and renunciation of his claim in open court after evidence had been presented, constituting an adjudication on the merits. Here, the dismissal was solely for non-appearance under the statute, which expressly provides that such a dismissal is not a bar to a new action. The demurrer to the special defense should have been sustained. The appeal was dismissed on procedural grounds (not being from a final judgment), but the Supreme Court addressed the merits to prevent unnecessary litigation and remanded the case for trial.