EN BANC
[G.R. No. L-2 8056, August 31, 1970 ]
ECONOMIC INSURANCE CO., INC., Petitioner, v. UY REALTY COMPANY, HONORABLE GAUDENCIO CLORIBEL, in his capacity as Judge of the Court of First Instance of Manila, Branch VI, and THE SHERIFF OF MANILA, Respondents.
Separate Opinions
TEEHANKEE, J., concurring:
I concur in the result, by virtue of petitioner’s failure to timely oppose in the lower court respondents’ "Manifestation and Motion to Execute Bond" of August 23, 1967, notwithstanding due notice thereof and the lower court’s earlier order of August 2, 1967 dismissing the case, given in open court and at respondent’s instance.
Had petitioner not thus waived its right and placed itself in estoppel as having agreed to an implied withdrawal of appeal and to execution of its bond,1 its present action might have met with success due to the erroneous procedure adopted by Respondent. Defendant-lessee’s perfected appeal from the city court’s judgment for ejectment and back rentals operated, under Rule 40, section 9 of the Rules of Court, to vacate the said judgment, which "shall be deemed revived and shall forthwith be remanded to the justice of the peace or municipal court for execution" only "if the appeal is withdrawn or dismissed for failure to prosecute."
The lower court’s dismissal of the case itself (not the appeal) at respondent-plaintiff’s instance due to its having secured the restoration of possession of the leased premises by writ of execution pending appeal on account of defendant lessee’s failure to pay current denials, would have written finis to the case itself without revival of the city court’s vacated judgment and would have left respondent without any money judgment to execute against defendant-lessee nor against petitioner on its supersedeas bond.ℒαwρhi৷ As provided in Rule 40, section 9 quoted above, it is only where the appeal itself from the municipal court judgment is withdrawn or dismissed for non-prosecution that the vacated judgment is deemed revived and execution thereof lies with the municipal court and not with the court of first instance which has rendered any judgment.
Footnotes
1 See 2 Martin’s Rules of Court, 1970 Ed., 456.
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