GR 43547; (September, 1938) (Digest)
G.R. No. 43547 ; September 13, 1938
JOSEFA MARCELO, plaintiff-appellant, vs. FELICIANO (alias FELIX BERMUDEZ) and BENITO ALCANTARA, defendants-appellees.
FACTS
Josefa Marcelo filed a complaint against her husband, Feliciano (alias Felix Bermudez), and Benito Alcantara. The defendants filed a demurrer to the complaint, arguing the facts alleged did not constitute a cause of action. The Court of First Instance of Pangasinan sustained the demurrer in an order dated January 7, 1935. The court reasoned that, according to the complaint’s own allegations, the land in question was registered in the name of defendant Feliciano, and thus the plaintiff had acquired no title or right over it. The court suggested the proper remedy, if the husband was indeed incapacitated due to deceit, was to have a guardian appointed for him and to file an annulment action in the ward’s name. The plaintiff was notified of the order on January 17, 1935, but failed to amend her complaint within the five-day period prescribed by the rules. The lower court subsequently dismissed the complaint on February 15, 1935, for failure to amend.
ISSUE
Whether the trial court erred in dismissing the complaint for plaintiff’s failure to amend it within the prescribed period after the demurrer was sustained.
RULING
No, the trial court did not err. The order of the Court of First Instance is affirmed. Under Rule 14 of the Rules of Courts of First Instance, when a demurrer is sustained, the party must amend the pleading within five days from notice of the order, unless the court grants an extension. The order sustaining the demurrer did not prohibit the plaintiff from amending her complaint. Having been notified on January 17, 1935, she had until January 22 to amend. Her failure to do so within that period constituted a waiver. Her subsequent motion for new trial, filed on January 30, was not a proper remedy under the circumstances, as the rule on demurrers, not the general provision on new trials, governed her case. The dismissal was in accordance with law.
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