Antique dealer Mercedes borrowed P1,000,000 from antique collector Benjamin. Mercedes issued a postdated check in the same amount to Benjamin to cover the debt.
On the due date of the check, Benjamin deposited it but it was dishonored. As despite demands, Mercedes failed to make good the check, Benjamin filed in January 2009 a complaint for collection of sum of money before the RTC of Davao.
Mercedes filed in February 2009 her Answer with Counterclaim, alleging that before the filing of the case, she and Benjamin had entered into a dacion en pago agreement in which her vintage ₱1,000,000 Rolex watch which was taken by Benjamin for sale on commission was applied to settle her indebtedness; and that she incurred expenses in defending what she termed a “frivolous lawsuit.” She accordingly prayed for ₱50,000 damages.
a. Benjamin soon after moved for the dismissal of the case. The trial court accordingly dismissed the complaint. And it also dismissed the Counterclaim.
Mercedes moved for a reconsideration of the dismissal of the Counterclaim. Pass upon Mercedes’ motion. (3%)
b. Suppose there was no Counterclaim and Benjamin’s complaint was not dismissed, and judgment was rendered against Mercedes for ₱1,000,000. The judgment became final and executory and a writ of execution was correspondingly issued.
Since Mercedes did not have cash to settle the judgment debt, she offered her Toyota Camry model 2008 valued at P1.2 million. The Sheriff, however, on request of Benjamin, seized Mercedes’ 17th century ivory image of the La Sagrada Familia estimated to be worth over ₱1,000,000.
Was the Sheriff’s action in order? (3%)
Suggested answer only. Not an official answer and not legal advice.
Mercedes' motion for reconsideration should be granted; while the Sheriff's action was not in order. Under Rule 17, Sec. 2 of the Rules of Court, the dismissal of a complaint upon plaintiff's motion shall be limited to the complaint and without prejudice
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Quick check
What is the effect under Rule 17 on a pending counterclaim when the court grants a plaintiff's motion to dismiss the complaint?
Under Rule 17, Section 2, the dismissal of a complaint upon plaintiff's motion is limited to the complaint and does not prejudice the counterclaim.
Who has the primary right to select which property shall be levied upon to satisfy a money judgment under Rule 39?
Section 9(b) of Rule 39 grants the judgment obligor the primary option to choose which property shall be levied upon.
What option is available to a defendant whose counterclaim is pending when the plaintiff moves to dismiss the main complaint?
Rule 17 allows the defendant to elect whether to prosecute the counterclaim in the same action or in a separate proceeding.
If a judgment obligor offers a sufficient motor vehicle to satisfy a money judgment, may the sheriff seize a different property requested by the creditor?
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Under Section 2 of Rule 17, within how many days from notice of the motion to dismiss must a defendant manifest preference to prosecute a counterclaim in the same action?
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Learn more about these topics
1. Counterclaim Survival Rules
Under Section 2, Rule 17 of the Rules of Court, if a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion for dismissal, the dismissal of the complaint shall be limited to the complaint itself. The dismissal of the main action shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action or to express his preference to have his counterclaim resolved in the same action.
2. Execution Property Selection
Under Section 9(b), Rule 39 of the Rules of Court, if the judgment obligor cannot pay all or part of the judgment debt in cash, the judgment obligor has the primary option to choose which of his personal or real properties shall be levied upon by the sheriff to satisfy the execution. The judgment creditor or the sheriff cannot override the judgment obligor's valid choice of sufficient non-exempt property to satisfy the money judgment.
3. Dismissal Upon Motion
When a plaintiff files a motion to dismiss his own complaint after the defendant has filed an answer containing a counterclaim, the court may grant the dismissal of the complaint. However, the trial court cannot automatically dismiss the defendant's counterclaim along with the main complaint. The court must give the defendant the opportunity to express whether he prefers to prosecute his counterclaim in the same proceeding or in a separate civil action.