GR L 31209; (April, 1972) (Digest)
G.R. No. L-31209 April 11, 1972
MARC DONNELLY, petitioner, vs. COURT OF FIRST INSTANCE OF MANILA and RODOLFO VILLAVICENCIO, respondents.
FACTS
This case originated from a final judgment in Civil Case No. 23466, wherein respondent Rodolfo Villavicencio was ordered to pay petitioner Marc Donnelly certain sums. The Court of Appeals entered final judgment on August 5, 1957. On July 8, 1967, before the lapse of ten years, Donnelly filed his first action to revive this judgment (Civil Case No. 70028). However, summons could not be served on Villavicencio despite diligent efforts. Consequently, the court dismissed this first revival action on March 10, 1969, explicitly “without prejudice.” Donnelly received notice of this dismissal on March 19, 1969.
On March 31, 1969, Donnelly filed a second action for revival of the same judgment (Civil Case No. 76166). Again, Villavicencio could not be located. Donnelly moved for service of summons by publication, arguing the action was quasi in rem. The trial court, instead of ruling on the motion, dismissed the second action on August 30, 1969, holding it was filed after the lapse of the ten-year prescriptive period from the finality of the original judgment on August 5, 1957. Donnelly’s motion for reconsideration was denied.
ISSUE
Whether the second action for revival of judgment (Civil Case No. 76166) had already prescribed.
RULING
No, the second action had not prescribed. The Supreme Court reversed the trial court’s orders. An action for revival of judgment prescribes in ten years from the date the judgment becomes final or is entered (Article 1144[3], Civil Code). The ten-year period commenced on August 5, 1957. The filing of the first revival action (Civil Case No. 70028) on July 8, 1967, well within the ten-year period, effectively interrupted the running of prescription (Article 1155, Civil Code).
The dismissal of the first action was explicitly “without prejudice.” When a case is dismissed without prejudice, the plaintiff may refile the complaint against the same defendant in a separate action. Here, the second action was filed on March 31, 1969, a mere twelve days after Donnelly received notice of the dismissal order on March 19, 1969. Therefore, the filing of the second action remained within the original ten-year prescriptive period, as the period was tolled by the timely commencement of the first suit. The Court also noted that, in any event, prescription is tolled when the defendant’s address cannot be ascertained with due diligence (Article 1108[2], Civil Code). The trial court thus erred in dismissing the case. The Supreme Court set aside the dismissal orders and directed the trial court to archive the case until Villavicencio’s address is known or his property is found.