1. PLEADING AND PRACTICE; DEFENSE OF RES ADJUDICATA; DEMURRER; APPEAL. — Plaintiff sued defendant in the Court of First Instance of Rizal for money loaned; the cause was set for trial; the plaintiff did not appear; the court upon request of defendant, dismissed the complaint under paragraph 2 of Section 127 of the Code of Civil Procedure. Thereafter plaintiff began another action in the Court of First Instance of Manila against the same defendant for the same cause. Defendant pleaded the judgment of the Court of First Instance of Rizal as a bar. Plaintiff demurred to the plea upon the ground that it did not state a defense. The Court of First Instance of Manila overruled the demurrer, holding the defense was good and that the judgment of the Court of First Instance of Rizal was a bar to the action in the Court First Instance of Manila. Held: Error. The order overruling the demurrer to the answer in this case was not appealable.

2. ID.; MOTION TO DISMISS; WHEN OPINION SHOULD BE RENDERED UPON THE MERITS, TO AVOID MULTIPLICITY. — Where a motion is made to dismiss an appeal after the cause has been submitted and argued, the court, if the circumstances seem to warrant it, will give its opinion upon the merits, although the motion to dismiss the appeal must prevail. The purpose of such opinion is to avoid unnecessary litigation and prevent the submission of the same question twice to the same court.

3. PLEADING AND PRACTICE; DISMISSAL UNDER SECTION 127, CODE OF CIVIL PROCEDURE. — A dismissal of a complaint under a paragraph 2 of section 127 of the Code of Civil Procedure is not a bar to another action for the same cause.

This is an appeal from a judgment of the Court of First Instance of the city of Manila overruling a demurrer filed by the plaintiff against special defense alleged in the answer.

On the 12th day of January, 1912, Ellsworth E. Zook, plaintiff, began an action in the Court of First Instance of Rizal against Robert Coker, defendant, for the recovery of a sum of money alleged to have been loaned by the plaintiff to the defendant. The trial was set for the 6th day of February, 1912. The plaintiff did not appear and the court dismissed the action, placing such dismissal expressly under paragraph 2, section 127 of the Code of Civil Procedure. A few days later the plaintiff paid the costs adjudged against him in the Court of First Instance of the Province of Rizal, and thereafter brought suit against the defendant in the Court of First Instance of the city of Manila for the recovery of the same sum of money which was the subject matter of the action in the Court of First Instance of the Province of Rizal. The answer was a general denial and contained the special defense that the judgment of dismissal by the Court of First Instance of Rizal was res judicata in the present action. The plea of estoppel and bar is as follows:jgc:chanrobles.com.ph

"That on the 6th day of February, 1912, in Pasig, Rizal Province, Philippine Islands, in an action then pending and numbered 878 in the Court of First Instance of Rizal, Fifth District, between the same plaintiff and the same defendant, entitled Ellsworth E. Zook, Plaintiff, v. Robert Coker, defendant, and for the same cause of action as in now set forth in this complaint, judgment was duly given by the court in favor of the present defendant, as follows: ’This cause is set for trial to-day in accordance with a previous application of the plaintiff, dated January 23 last, alleging that he would be ready to try the case during the first part of the present month. The case being called, the court finds in the record a motion of the plaintiff, dated the 5th and filed on the 6th, which alleged that by reason of the fact that the plaintiff and his partner are occupied in the trial of cases in the courts of the city of Manila, which cases referred to and set forth in said motion, he asks a further adjournment of the trial of the case. The attorney for the defendant objects to the adjournment and asks for a dismissal of the case by reason of the great prejudice which would result to the defendant otherwise. The court, considering both motions, declines to adjourn the cause, for the reason that it has already been adjourned once and that reasons set forth by the plaintiff might are not sufficient to justify another adjournment. The plaintiff might have asked the adjournment. The plaintiff might have asked for the adjournment of the trials in Manila and tried the present cause, as to the time of which he has been informed since the 24th of January last; and for the further reason that the defendant is an officer in the United States Army who must said from the Islands on the 14th of January, and inasmuch as the adjournment would cause him great prejudice, the court, making use of the authority conferred by paragraph w of section 127 of Act No. 190, dismisses the present action with costs against the plaintiff.’"

The plaintiff demurred to this special defense upon the ground that it did not state facts sufficient to constitute the defense of estoppel by res judicata or otherwise. The trial court overruled the demurrer. This appeal is taken from that order.

A motion has been made to dismiss the appeal on the ground that it is not from a final judgment under section 123 of the Code of Civil Procedure and the decisions of this court thereunder. The motion is well founded. (Segovia v. Prov. Board of Albay Et. Al., 13 Phil. Rep., 331; Averia v. Reboldera, 10 Phil. Rep., 316 Serrano Et. Al. v. Serrano, Phil. Rep., 142.) While this is true, nevertheless, for the purpose of preventing unnecessary litigation, trouble, and expenses, we give our opinion upon the question raised by the appeal, it having been presented to and fully argued in this court before the motion to dismiss was made. (Lichauco v. Limjuco, Phil. Rep., 12.)

The learned trial court overruled the demurrer upon the authority of the case of Yangco v. De Asis, 22 Phil. Rep., 201. In this case of Yangco v. De Asis, the action was originally brought against Luis R. Yangco to recover the value of certain medical serviced. After evidence relative to the rendition and value of the alleged services has been introduced and while the plaintiff was on the witness stand in his own behalf, "he stated that he was losing time in the trial of the case and that he wished to dismiss his complaint and make the defendant a present of his services." The court thereupon made the following order:jgc:chanrobles.com.ph

"This case this day came on for trial upon the complaint, answer, cross complaint, and proof, and while the plaintiff was on the witness stand, pending his examination, he stated that he was losing too much time in the trial of the case and that he wished to dismiss his complaint and make the defendant a present of his services: It is, therefore, ordered and adjudged by the court that this case be and the same is hereby dismissed, and that the defendant, Luis R. Yangco, recover of the Plaintiff, Antonio de Asis, the costs of this case, for which execution may issue,"

After the death of Luis R. Yangco, Antonio de Asis sought to present against his estate the same claim which had been the subject matter of the action taken against Yangco in his lifetime and which had been dismissed as heretofore stated. This court held that the claim could not be presented, as the judgment in the former action was res judicata and was a bar thereto.

Between the case at bar and the case cited by the trial court to sustain his opinion there exists, then, these differences: (1) In the Yangco case the plaintiff appeared personally at the trial. In the case at bar he did not. (2) In the Yangco case evidence was introduced and the plaintiff was on the stand as a witness when the action was dismissed. In the case at bar no evidence is introduced, the plaintiff was not even present in court not was he represented by attorney who was present. (3) In the Yangco case the plaintiff himself requested a final and irrevocable dismissal of the action. In the case at bar nothing of that sort happened. (4) In the Yangco case the plaintiff by his own act, upon grounds sufficient unto himself, sought to destroy and wipe our completely the subject matter of his action, saying that by reason of the time he was spending in the collection of the claim he desired to terminate the matter finally and to that end to make a present of said claim to the defendant. In the case at bar nothing of the sort occurred. (5) In the Yangco case the court dismissed the action finally upon the evidence produced in the case and upon the definite, specific, and voluntary abandonment in open court by the plaintiff of any cause of action which he might have against the defendant, which abandonment was accepted by the court and partied and acted upon the court by the entry of a final judgment thereon. In the case at bar nothing of the kind occurred. And finally, (6) in the case at bar the court, as is seen above, expressly placed his dismissal of the case under paragraph w of section 127 of the Code of Civil Procedure, which provides that an action may be dismissed "by the court, when the plaintiff fails to appear at the time of the trial, and the defendant appears and asks for the dismissal;" and which said section also provides that in such a case "a dismissal of the action shall not be a bar to another action for the same cause." In the Yangco case no such dismissal was made.

We therefore, see that the two cases are different both superficially and fundamentally.

The appeal is dismissed and the cause remanded for trial. No costs. So ordered.

Arellano, C.J. Torres, and Trent, JJ., concur.