464

SUPREMECOURTREPORTSANNOTATED
Yapvs.Tanada
*

No.L32917.July.18,1988.

JULIAN S. YAP, petitioner, vs. HON. SANTIAGO O. TANADA,

etc., and GOULDS PUMPS INTERNATIONAL (PHIL.), INC.,
respondents.
Remedial Law Judgments Finale and executory judgmentOnce a
judgmenthasbecomefinalandexecutory,noappealcanbetakentherefrom
or from any other subsequent orders and the execution thereof becomes a
matterofright.
SameSameNewTrialMotionfornewtrialmustbeaccompaniedby
anaffidavitofmerits.WhenamotionfornewtrialisfoundedonSection
l(a), Rule 37 of the Rules of Court, i.e., fraud, accident, mistake or
excusable negligence which ordinary prudence could not have guarded
against and by reason of which the aggrieved party has probably been
impaired in his rights, it should be accompanied by an affidavit of merits.
Therequirementofsuchaffidavitis
________________
3Lesacav.Cuevas,125SCRA384.
*FIRSTDIVISION.

465

VOL.163,JULY18,1988

465

Yapvs.Tanada

essentialbecauseobviouslyanewtrialwouldbeawasteofthecourt'stime
ifthecomplaintturnsouttobegroundlessorthedefenseineffective.
Same Same Postponement Refusal ofjudge to grant postponement.
The refusal of a trial judge to grant postponement on the ground of
exploring possibility of an amicable settlement does not constitute grave

abuse of discretion or serious mistake, there having been dilatory tactics

attributable to the movant. A possible compromise (at least in general or
preliminaryterms)iscertainlymostappropriateforconsiderationatthepre
trial.
Same SameAppeals Period of Appeal.The time during which a
motiontosetasidethejudgmentororderorforanewtrialhasbeenpending
shall be deducted from the pei'iod of appeal, unless such motion fails to
satisfytherequirementsofRule37.
SameSameDefaultFailure to appear at the pretrial.Defendant's
faiiure to appear at the pretrial without justification and despite notice,
which caused the declaration of his default, is a waiver of his right to
controverttheplaintiffsproofandofhisrighttoprovetheavermentsofhis
answer,inclusiveofthecounterclaimthereinpleaded.

PETITIONforcertioraritoreviewtheordersoftheCourtofFirst
InstanceofCebuCity,Br.V.Tanada,J.
ThefactsarestatedintheopinionoftheCourt.
PaternoP.Natingaforprivaterespondent.
NARVASA,J.:
Thepetitionforreviewoncertiorariatbarinvolvestwo(2)Orders
1
of respondent Judge Tafiada in Civil Case No. 10984. The first,
dated September 16, 1970, denied petitioner Yap's mqtion to set
aside execution sale and to quash alias writ of execution. The
second, dated November 21,1970, denied Yap's motion for
reconsideration.Theissuesconcernedtheproprietyofexecutionofa
judgmentclaimedtobe"incomplete,vagueandnonfinal,"andthe
denialofpetitioner'sapplicationto
________________
1ThenpresidingJudgeofBranchVoftheCourtofFirstInstanceofCebuCity.

466

466

SUPREMECOURTREPORTSANNOTATED
Yapvs.Tanada

prove and recover damages resulting from alleged irregularities in

theprocessofexecution.
Theantecedentswilltakesometimeinthetelling.Thecasebegan
in the City Court of Cebu with the2 filing by Goulds Pumps3
International(Phil.),Inc.ofacomplaint againstYapandhiswife,
seeking recovery ofPl,459.30 representing the balance of the4 price
andinstallationcostofawaterpumpinthelatter'spremises. Tftie

caseresultedinajudgmentbytheCityCourtonNovember25,1968,
readingasfollows:
"Whenthiscasewascalledfortrialtoday,Atty.PaternoNatingaappeared
for the plaintiff (Goulds) and informed the court that he is ready for trial.
However, none of the defendants appeared despite notices having been
serveduponthem.
"UponpetitionofAtty.Natinga,theplaintiffisherebyallowedtopresent
itsevidenceexparte.
"Afterconsideringtheevidenceoftheplaintiff,thecourtherebyrenders
judgmentinfavoroftheplaintiffandagainstthedefendant(Yap),ordering
thelattertopaytotheformerthesumofPl,459.30withinterestattherateof
12%perannumuntilfullypaid,computedfromAugust12,1968,dateofthe
filingofthecomplainttopaythesumofP364.80asreasonableattorney's
fees,whichisequivalentto25%oftheunpaidprincipalobligationandto
paythecosts,ifany."

YapappealedtotheCourtofFirstInstance.Theappealwasassigned
tothesalaofrespondentJudgeTanada.Forfailuretoappearforpre
trial onAugust28,1968, this setting being intransferable5 since the
pretrialhadalreadybeenoncepostponedathisinstance, Yapwas6
declaredindefaultbyOrderofJudgeTanadadatedAugust28,1969,
readingasfollows:
_________________
2AnnexE,petition,pp.3435,Rollo.
3However,Mrs.MinervaV.Yapwassubsequentlydroppedfromthecomplaint.
4Yap'sanswer(rollo,pp.36etseq)putupthedefensethatthepurchasedocument

didnotreflecthisrealagreementwithGoulds,andhehadmadeseveralcomplaints
aboutthepumptonoavail.Goulds'claimisthattheexaminationofthepumpshowed
ittobeingoodworkingorder,buttheYapshadrefusedtoattesttheretodespitebeing
presentduringtheexamination(rollo,pp.72etseq).
5Infra:footnoteNo.1,p.3.
6Rollo,p.188.

467

VOL.163,JULY18,1988

467

Yapvs.Tailada
"When this case was called for pretrial this morning, the plaintiff and
counsel appeared, but neither the defendants nor his counsel appeared
despitethefactthattheyweredulynotifiedofthepretrialsetthismorning.
Instead he filed an ExParte Motion for Postponement which this Court
receivedonlythismorning,andonpetitionofcounselfortheplaintiffthat
theExParteMotionforPostponementwasnotfiledinaccordancewiththe
Rules of Court he asked that the same be deriied and the defendants be

declaredindefaultxxthemotionfortheplaintiffbeingwellgrounded,the
defendantsareherebydeclaredindefaultandtheBranchClerkofCourtxx
isherebyauthorizedtoreceiveevidencefortheplaintiffandxxsubmithis
reportwithinten(10)daysafterreceptionofevidence."

Goulds presented evidence exparte and judgment by default was

renderedthefollowingdaybyJudgeTanadarequiringYaptopayto
Goulds (1) Pl,459.30 representing the unpaid balance of the pump
purchasedbyhim(2)interestof12%perannumthereonuntilfully
paid and (3) a sum equivalent to 25% of the amount due as
attorney's fees and costs and other expenses in prosecuting the
action. 7Notice of the judgment was served on Yap on September
1,1969.
8
OnSeptember16,1969Yapfiledamotionforreconsideration.
Initheinsistedthathismotionforpostponementshouldhavebeen
grantedsinceitexpressedhisdesiretoexplorethepossibilityofan
amicable settlement that the court should give the parties time to
arriveatanamicablesettlementfailingwhich,heshouldbeallowed
topresentevidenceinsupportofhisdefenses(discrepancyastothe
price and breach of warranty). The motion was not verified or
accompaniedbyanyseparateaffidavit.Gouldsopposedthemotion.
9
Its opposition drew attention to the eleventhhour motion for
postponement of Yap which had resulted in the cancellation of the
priorhearingofJune30,1969despiteGoulds'vehefnentobjection,
and the resetting thereof on August 28,1969 with intransferable
characteritaverredthatYaphadagainsoughtpostpone
________________
7Id.,p.10.
8Id.,pp.4142.
9Id.,pp.43etseq.Anadditionalgroundforpostponementwasthathewouldbe

inBarili,Cebu,onthedateofthepretrial.
468

468

SUPREMECOURTREPORTSANNOTATED
Yapus.Tanada

ment of this last hearing by another eleventhhour motion on the

pleathatanamicablesettlementwouldbeexplored,yethehadnever
10
up to that time ever broached the matter, and that this pattern of
seekingtoobtainlastminutepostponementswasdiscerniblealsoin
theproceedingsbeforetheCityCourt.Initsopposition,Gouldsalso
advertedtotheexaminationmadebyitofthepump,oninstructions
oftheCityCourt,withaviewtoremedyingthedefectsclaimedto
existbyYapbuttheexaminationhaddisclosedthepump'sperfect
condition. Yap's motion for reconsideration was denied by Order

dated October 10,

1969, notice of which was received by Yap on
11
October4,1969.
On October 15,1969 Judge Tanada issued an Order granting
Goulds' Motion for Issuance of Writ of Execution dated October12
14,1969, declaring the reasons therein alleged to be meritorious.
Yap forthwith filed an "Urgent
Motion for Reconsideration of
13
Order" dated October 17,1969, contending that the judgment had
notyetbecomefinal,sincecontrarytoGoulds'view,hismotionfor
reconsideration was notp/'o forma for lack of an affidavit of merit,
thisnotbeingrequiredunderSectionl(a)ofRule37oftheRulesof
Court upon which his motion was14 grounded. Goulds presented an
oppositiohdatedOctober22,1969. Itpointedoutthatinhismotion
for reconsideration Yap had claimed to have a valid defense to the
action, i.e., "x x discrepancy as to price and breach of seller's
warranty," in effect, that there was fraud on Goulds' part Yap's
motionforreconsiderationshouldthereforehavebeensupportedby
an affidavit of merit respecting said defenses the absence thereof
rendered the motion for reconsideration fatally defective with the
result that its filing did not interrupt the running of the period of
appeal. The opposition also drew attention to the failure of the
motionforreconsiderationtospecifythefmdingsoreonclusionsin
thejudgmentclaimedtobecontrarytolawor
________________
10 It appears that the pump was delivered and installed at the Yaps' premises in

December,1967:Rollo,pp.34etseq.
11Rollo,p.10.
12Id.,p.114.
13ld.,p.115.
14ld.,p.117.

469

VOL.163,JULY18,1988

469

Yapus.Tanada

not supported by the evidence, making it a pro forma motion also

incapableofstoppingtherunningoftheappealperiod.OnOctober
23,1969,JudgeTafiadadeniedYap'smotionforreconsiderationand
15
authorized execution of the judgment. Yap sought reconsideration
16
of this order, by another motion dated October 29,171969. This
motion was denied by Order dated January 26,1970. Again Yap
movedforreconsideration,andagainwasrebuffed,byOrderdated
18
April28,1970.
In the
meantime the Sheriff levied on the water pump in
19
question, and by notice dated November 4, 201969, scheduled the
executionsalethereof011November14,1969. But inviewofthe

pendency of Yap's motion for reconsideration of October 29,1969,

suspension of the sale was
directed by Judge Tafiada in an order
21
datedNovember6,1969.
"Counsel for the plaintiff is hereby given 10 days time to answer the
Motion, dated October 29,1969, from receipt of this Order and in the
meantime,theOrderofOctober23,1969,insofarasitordersthesheriffto
enforcethewritofexecutionisherebysuspended."

ItappearshoweverthatacopyofthisOrderwasnottransmittedto
the Sheriff "through oversight,
inadvertence and pressure of work"
22
oftheBranchClerkofCourt. SotheDeputyProvincialSheriffwent
ahead with the scheduled auction sale
and sold the property levied
23
ontoGouldsasthehighestbidder. Helatersubmittedtherequisite
24
report to the Court dated November 17,1969, as well as the
"SherifFsReturnof
_________________
15Id.,p.11.
16

Id., p. 124 et seq. The motion reiterated prior arguments and in addition,

contained a "Specification of fmdings not supported by evidence" and a

"Specificationofconclusionscontrarytolaw."Anoppositiontheretowasfiledunder
dateofNov.27,1969(Rollo,p.128)
17Id.,p.133.
18Id.,p.135.
19Id.,pp.52,53.
20Id.,p.54.
21Id.,p.56,SEEparagraphs18and19,petition.
22Rollo,pp.137,134,
23Id.,p.131.TheCertificateofSaleisdatedNovember14,1969.
24Id.,p.123.

470

470

SUPREMECOURTREPORTSANNOTATED
Yapus.Tailada
25

Service" dated February 13, 1970, in both of which it was stated

that execution had been "partially satisfied." It should be observed
thatuptothistime,February,1970,Yaphadnotbestirredhimselfto
takeanappealfromthejudgm.entofAugust29,1969.
OnMay9,1970JudgeTariadaorderedtheissuanceofanalias
26
writofexecutiononGoulds'expartemotiontherefor. Yapreceived
notice of the Order on June 11. Twelve (12) days later, he filed a
"Motion to27Set Aside Execution Sale and to Quash Alias Writ of
Execution." As regards the original, partial execution of the
judgment,hearguedthat

1) "theissuanceofthewritofexecutiononOctober16,1969
wascontrarytolaw,thejudgmentsoughttobeexecutednot
beingfinalandexecutory"and
2) "thesalewasmadewithoutthenoticerequiredbySec.18,
Rule 39, of the New Rules of Court," i.e., notice by
publication in case of execution sale of real property, the
pump and its accessories being immovable because
attached to the ground with character of permanency (Art.
415,CivilCode).
Andwithrespecttothealiaswrit,hearguedthatitshouldnothave
issuedbecause
1) "thejudgmentsoughttobeexecutedisnullandvoid"as"it
deprived the defendant of his day in court" and "of due
process"
2) "said judgment is incomplete and vague" because there is
nostartingpointforcomputationoftheinterestimposed,or
a specification of the "other expenses incurred in
prosecutingthiscase"whichYaphadalsobeenorderedto
pay
3) "said judgment is defective* because it contains no
statementoffactsbutamererecitaloftheevidenceand
4) "there has been a change in the situation of the parties
whichmakesexecutionunjustandinequitable"becauseYap
suffereddamagesbyreasonoftheillegalexecution.
________________
25Id.,p.57.
26Par.21,petition,p.12,Rollo.
27Rollo,pp.22,etseq.

471

VOL.163,JULY18,1988

471

Yapus.Tanada

Goulds filed an opposition on July 6,1970. Yap's motion was

thereafterdeniedbyOrderdatedSeptember16,1970.JudgeTanada
pointedoutthatthemotionhad"becomemootandacademic"since
the decision of August 29, 1969, "received by the defendant on
September 1, 1969 had long become fmal when the Order for the
Issuance of a Writ of Execution was promulgated on October 15,
1969."HisHonoralsostressedthat

"Thedefendant'sMotionforReconsiderationoftheCourt'sdecisionwasin
realityonefornewtrial.Regardedasmotionfornewtrialitshouldallege
thegroundsfornewtrial,providedforintheRulesofCourt,tobesupported
byaffidavitofmeritsandthisthedefendantfailedtodo.Ifthedefendant
sincerely desired for an opportunity to submit to an amicable settlement,
whichhefailedtodoextrajudiciallydespitetheampletimebeforehim,he
shouldhaveappearedinthepretrialtoachievethesamepurpose."

JudgeTanadathereafterpromulgatedanotherOrderdatedSeptember
21,1970grantingamotionofGouldsforcompletionofexecutionof
the judgment of August 29, 1969 to be undertaken by the City
Sheriff of Cebu. Once more, Yap sought reconsideration. He
submitted a "Motion
for Reconsideration of Two Orders" dated
28
October13,1970, seekingthesettingasidenotonlyofthisOrder
of September 21,1970 but also that dated September 16,1970,
denying his motion to set aside execution dated June 23, 1970. He
contended that the Order of September 21, 1970 (authorizing
execution by the City Sheriff) was premature, since the 30day
period to appeal from the earlier order of September 16, 1970
(denying his motion to set aside) had not yet expired. He also
reiterated his view that his motion for reconsideration dated
September 15, 1969 did not require that it be accompanied by an
affidavit of merits. This last motion was also
denied for "lack of
29
merits,"byOrderdatedNovember21,1970.
On December 3, 1970, Yap filed a "Notice of Appeal"
manifesting his intention to appeal to the Supreme Court on
certiorari only on questions of law, "from the Order x x of
September
________________
28Id.,pp.30etseq.
29Id.,p.142.

472

472

SUPREMECOURTREPORTSANNOTATED
Yapvs.Tanada

16,1970 x x and from the Order x x of November 21,1970, x x

pursuanttosections2and3ofRepublicActNo.5440."Hefiledhis
petition for review with this30 Court on January 5, 1971, after
obtaininganextensiontherefor.
The errors
of law he attributes to the Court a quo are the
31
following:
1) refusingtoinvalidatetheexecutionpursuanttoitsOrderof
October 16, 1969 although the judgment had not then

become fmal and executory and despite its being

incompleteandvague
2) ignoring the fact that the execution sale was carried out
although it (the Court) had itself ordered suspension of
executiononNovember6,1969
3) declining to annul the execution sale of the pump and
accessoriessubjectoftheaetionalthoughmadewithoutthe
requisitenoticeprescribedforthesaleofimmovablesand
4) refusingtoallowthepetitionertoproveirregularitiesinthe
processofexecutionwhichhadresultedindamagestohim.
Notice of the Trial Court's judgment was served on Yap on
September1,1969.Hismotionforreconsiderationthereofwasfiled
15 days thereafter, on September 16,1969. Notice of the Order
denyingthemotionwasreceivedbyhimonOctober14,1969.The
question is whether or not the motion for reconsiderationwhich
was not verified, or accompanied by an affidavit of merits (setting
forthfactsconstitutinghismeritoriousdefensestothesuit)orother
sworn statement (stating facts excusing his failure to appear at the
pretrial)wasproformaandconsequentlyhadnotinterruptedthe
runningoftheperiodofappeal.ItisYap'scontentionthathismotion
wasnotproformaforlackofanaffidavitofmerits,suchadocument
notbeingrequiredbySection1(a)ofRule37oftheRulesofCourt
uponwhichhismotionwasbased.Thisisincorrect,
Section 2, Rule 37 precisely requires that when the motion for
newtrialisfoundedonSection1(a),itshouldbeaccompaniedby
anaffidavitofmerit.
_________________
30 Granted by Resolution dated January 4,1971, for 15 days from December 8

(Rollo,p.5)
31Rollo,pp.56.

473

VOL.163,JULY18,1988

473

Yapvs.Tanada
"xxx
"Whenthemotionismadeforthecausesmentionedinsubdivisions(a)
and(b)oftheprecedingsection,itshallbeprovedinthemannerprovided
forproofofmotions.Affidavitoraffidavitsofmeritsshallalsobeattached
to a inotion for the cause mentioned in subdivision (a) which may be
rebuttedbycounteraffidavits.
32
"xxx."

Since Yap himself asserts that his motion

for reconsideration is
33
groundedonSection1(a)ofRule37, i.e.,fraud,accident,mistake
or excusable negligence which ordinary prudence could not have
guardedagainstandbyreasonofwhichxx(the)aggrievedpartyhas
probablybeenimpairedinhisrights"thisbeinginanyeventclear
from a perusal of the motion which theorizes that he had "been
impaired in his rights" because he was denied the right to present
evidence of his defenses (discrepancy as to price and breach of
warranty)itwasafatalomissiontofailtoattachtohismotionan
affidavit of merits, i.e., an affidavit "showing the facts (not
conclusions) constituting the valid x x defense
which the movant
34
mayproveincaseanewtrialisgranted." Therequirementofsuch
an affidavit is essential because obviously "a new trial would be a
wasteofthecourt'stimeifthecomplaintturnsouttobegroundless
35
orthedefenseineffective."
Inhismotionforreconsideration,Yapalsocontendedthatsince
he had expressed a desire to explore the possibility of an amicable
settlement,theCourtshouldhavegivenhimtimetodoso,insteadof
declaring him in default and thereafter rendering judgment by
defaultonGoulds'exparteevidence.
The bona fides of this desire to compromise is however put in
doubtbytheattendantcircumstances.Itwasmanifestedinan
_________________
32Italicssupplied.
33SEEfootnoteNo.14,supra.
34SEECoombsv.Santos,24Phil.446,451,citedinFeria,CivilProcedure,1969

ed.,p.514see,too,Moran,CommentsontheRules,1979ed.,Vol.2,pp.214215,
citingnumerouscasesparentheticalinsertionsupplied.
35Moran,op.cit.,p.215,citingVda.deYulov.ChuaChuco,etal.,48O.G.554

Baguieranv.CourtofAppeals,L14551,July31,1961,2SCRA873.
474

474

SUPREMECOURTREPORTSANNOTATED
Yapus.Tanada

eleventhhourmotionforpostponementofthepretrialwhichhad
been scheduled with intransferable character since it had already
been earlier postponed at Yap's instance it had never been
mentioned at any prior time since commencement of the litigation
such a possible compromise (at least in general or preliminary
terms) was certainly most appropriate for consideration at the pre
trial in fact Yap was aware that the matter was indeed a proper
subject of a pretrial agenda, yet he sought to avoid appearance at
saidpretrialwhichheknewtobeintransferableincharacter.These
considerationsandthedilatorytacticsthusfarattributabletohim

seeking postponements of hearings, or failing to appear therefor

despitenotice,notonlyintheCourtofFirstInstancebutalsointhe
City Court proscribe belief in the sincerity of his avowed desire to
negotiate a compromise. Moreover, the disregard by Yap of the
generalrequirementthat"(n)oticeofamotionshallbeservedbythe
applicant to all parties concerned at lea^t three (3) days before the
hearing thereof, together with a copy of the motion,
and of any
36
affidavits and other papers accompanying it," for which no
justification whatever has been offered, also militates against the
bonafidesofYap'sexpressedwishforanamicablesettlement.The
relevant circumstances do not therefore justify condemnation, as a
graveabuseofdiscretion,oraseriousmistake,oftherefusalofthe
TrialJudgetograntpostponementuponthisproferredground.
The motion for reconsideration did not therefore interrupt the
running of the period of appeal. The time during which it was
pending before the courtfrom September 16,1969 when it was
filedwiththerespondentCourtuntilOctober14,1969whennotice
oftheorderdenyingthemotionwasreceivedbythemovantcould
37
not be deducted from the 30day period of appeal. This is the
inescapableconclusionfromaconsidera
________________
36

SEE Sections 4, 5 and 6, Rule 15 Manila Surety & Fidelity Co. v. Batu

ConstructionCo., L16636, June 24,1965 Fulton Insurance Co. v. Manila Railroad

Co.,L24263,November18,1967,citedinMoran,opcit.,p.214.
37BPNo.129hassincereducedtheperiodofappealto15daysexceptinspecial

proceedingsorcaseswheremultipleappealsareallowed.
475

VOL.163,JULY18,1988

475

Yapus.Tanada

tionofSection3ofRule41whichinpartdeclaresthat,"Thetiine
during which a motion to set aside the judgment or order or for a
new trial has been pending shall be deducted,
unless such motion
38
failstosatisfytherequirementsofRule37."
Notice of the judgment having been received by Yap on
September 1,1969, and the period of appeal therefrom not having
been interrupted by his motion for reconsideration filed on
September16,1969,thereglementaryperiodofappealexpiredthirty
(30)daysafterSeptember1,1969,oronOctober1,1969,withoutan
appeal being taken by Yap. The judgmpnt then became final and
executory Yap could no longer take an appeal therefrom or from
any other subsequent orders and execution of judgment
correctly
39
issuedonOctober15,1969,"asamatterofright."

ThenextpointdiscussedbyYap,thatthejudgmentisincomplete
andvague,isnotwelltaken.Itistruethatthedecisiondoesnotfix
thestartingtimeofthecomputationofinterestonthejudgmentdebt,
but this is inconsequential since that time is easily determinable
fromtheopinion,i.e.,fromthedaythebuyer(Yap)defaultedinthe
40
41
paymentofhisobligation, onMay31,1968. Theabsenceofany
disposition regarding his counterclaim is also immaterial and does
not render the judgment incomplete. Yap's failure to appear at the
pretrial without justification and despite notice, which caused the
declarationofhisdefault,wasawaiverofhisrighttocontrovertthe
plaintiff s proofs and of his right to prove the averments of his
answer,inclusiveofthecounterclaimthereinpleaded.Moreover,the
conclusion in the judgment of the merit of the plaintiffs cause of
action was necessarily and at the same time a determination of the
absence of merit of the defendant's claim of untenability of the
complaintandofmaliciousprosecution.
Yap'snextargumentthatthewaterpumphadbecomeimmovable
propertybyitsbeinginstalledinhisresidenceisalso
_________________
38

Italics supplied see Coombs v. Santos, 24 Phil. 446, 451, and Alfonso v.

Bustamante,98Phil.158,citedinFeria,op.cit,pp.514515andCapinpin,etal.v.
Isip,L14018,Aug.31,1959,citedinMoran,op.cit.
39Sec.1,Rule39SeeAmorv.Jugo,etal.,77Phil.703.
40Rollo,p.39.
41Id.,pp.35,193.

476

476

SUPREMECOURTREPORTSANNOTATED
Yapvs.Tafiada

untenable.TheCivilCodeconsidersasimmovableproperty,among
others, anything "attached to an immovable in a fixed manner, in
such a way that it cannot be separated therefrom
without breaking
42
thematerialordeteriorationoftheobject." Thepumpdoesnotfit
this description. It could be, and was in fact separated from Yap's
premiseswithoutbeingbrokenorsufferingdeterioration.Obviously
the separation or removal of the pump involved nothing more
complicated than the loosening of bolts or dismantling of other
fasteners.
Yap'slastclaimisthatintheprocessoftheremovalofthepump
from his house, Goulds' men had trampled on the plants growing
there, destroyed the shed over the pump, plugged the exterior
casings with rags and cut the electrical and conduit pipes that he
hadtherebysufferedactualdamagesinanamountofnotlessthan
P2,000.00, as well as moral damages in the sum of P10,000.00

resultingfromhisdeprivationoftheuseofhiswatersupplybutthe
Courthadrefusedtoallowhimtoprovetheseactsandrecoverthe
damagesrightfullyduehim.Now,astothelossofhiswatersupply,
sincethisarosefromactslegitimatelydone,theseizureonexecution
ofthewaterpumpinenforcementofafinalandexecutoryjudgment,
Yapmostcertainlyisnotentitledtoclaimmoraloranyotherform
ofdamagestherefor.
WHEREFORE, the petition is DENIED and the appeal
DISMISSED,andtheOrdersofSeptember16,1970andNovember
21,1970 subject thereof, AFFIRMED in toto. Costs against
petitioner.
Cruz,Gancayco,GrinoAquinoandMedialdea,JJ.,concur.
Petitiondenied.Appealdismissed,andorde?*saffirmed.
Note.Wherefirstmotionforreconsiderationshouldnotresult
indismissalofappeal.(LuzonConcreteProductsvsCA135SCRA
455.)
oOo
________________
42ART.415,par.(3).

477

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