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[G.R. No. L-7858. October 26, 1955. ]

FRANCISCO L. DAYRIT, Plaintiff-Appellant, v. NORBERTO L. DAYRIT and FLORA REGNER-DAYRIT, Defendants-Appellees.

Jose W. Diokno and Salvador P. Tagle for Appellant.

Vicente Jaime and Celso C. Veloso for Appellees.


1. JUDGMENT; "RES ADJUDICATA" ; NOT APPLICABLE WHERE ISSUE OF EXTRINSIC FRAUD WAS NOT PASSED UPON IN PREVIOUS CASES. — Since the existence of extrinsic fraud in obtaining the decree of adoption of the minor Lydia Duvan was not taken up in the previous decision of the Supreme Court, either in case of G.R. No. L-5627, or in case of G.R. No. L-6013, and the only question involved in the latter case was whether or not appellees were entitled to the custody of said minor, which was, for obvious reasons, resolved in the affirmative, in view of said decree of adoption in favor of the appellees, the doctrine of res adjudicata may not be invoked as a bar to the present action for annulment of the decree aforementioned.



This is an appeal from an order of dismissal of the Court of First Instance of Manila.

It appears that on January 27, 1951, a decision was rendered in Special Proceeding No. 747-R of the Court of First Instance of Cebu, entitled "In the Matter of the Adoption of the Minor, Lydia Duran — Norberto L. Dayrit and Flora Regner-Dayrit, Petitioners," granting the latter’s application for the adoption of Lydia Duran, a minor five years of age, whose mother, Lutgarda Duran, had consented thereto. About a year later, or on January 3, 1952, Francisco L. Dayrit filed a motion for reconsideration of said decision, upon the ground that the same had been obtained through fraud and that said movant is the father of Lydia Duran — whose true name is said to be Lydia Dayrit — and a brother of petitioner Norberto L. Dayrit, who knew the relation between the movant and Lydia Duran, and concealed this fact from the court. By an order dated on February 4, 1952, the Court of First Instance of Cebu granted this motion, set aside the aforementioned decision and directed a new trial. In an action for certiorari and prohibition, instituted by Norberto L. Dayrit before this Court, G. R. No. L-5627, entitled "In re adoption of the minor Lydia Duran — Norberto L. Dayrit Et. Al. v. Edmundo S. Piccio, Et Al.," said order of February 4, 1952 was annulled in a decision promulgated on February 27, 1953, the dispositive part of which reads:jgc:chanrobles.com.ph

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