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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-16513 January 18, 1921

THE UNITED STATES, plaintiff-appellee,

vs.
MANUEL TAMBUNTING, defendant-appellant.

Manuel Garcia Goyena for appellant.

Acting Attorney-General Feria for appellee.

STREET, J.:

This appeal was instituted for the purpose of reversing a judgment of the Court of First Instance of the city
of Manila, finding the accused, Manuel Tambunting, guilty of stealing a quantity of gas belonging to the
Manila Gas Corporation, and sentencing him to undergo imprisonment for two months and one day, of
arresto mayor, with the accessories prescribed by law; to indemnify the said corporation in the sum of P2,
with subsidiary imprisonment in case of insolvency; and to pay the costs.

The evidence submitted in behalf of the prosecution shows that in January of the year 1918, the accused
and his wife became occupants of the upper floor of the house situated at No. 443, Calle Evangelista, in
the city of Manila. In this house the Manila Gas Corporation had previously installed apparatus for the
delivery of gas on both the upper and lower floors, consisting of the necessary piping and a gas meter,
which last mentioned apparatus was installed below. When the occupants at whose request this installation
had been made vacated the premises, the gas company disconnected the gas pipe and removed the
meter, thus cutting off the supply of gas from said premises.

Upon June 2, 1919, one of the inspectors of the gas company visited the house in question and found that
gas was being used, without the knowledge and consent of the gas company, for cooking in the quarters
occupied by the defendant and his wife: to effect which a short piece of iron pipe had been inserted in the
gap where the gas meter had formerly been placed, and piece of rubber tubing had been used to connect
the gas pipe of rubber tubing had been used to connect the gas pipe in kitchen with the gas stove, or plate,
used for cooking.

At the time this discovery was made, the accused, Manuel Tambunting, was not at home, but he presently
arrived and admitted to the agent to the gas company that he had made the connection with the rubber
tubing between the gas pipe and the stove, though he denied making the connection below. He also
admitted that he knew he was using gas without the knowledge of the company and that he had been so
using it for probably two or three months.

The clandestine use of gas by the accused in the manner stated is thus established in our opinion beyond
a doubt; and inasmuch as the animo lucrandi is obvious, it only remains to consider, first, whether gas can
be the subject to larceny and, secondly, whether the quantity of gas appropriated in the two months, during
which the accused admitted having used the same, has been established with sufficient certainty to enable
the court to fix an appropriate penalty.

Some legal minds, perhaps more academic than practical, have entertained doubt upon the question
whether gas can be the subject of larceny; but no judicial decision has been called to our attention wherein
any respectable court has refused to treat it as such. In U.S. vs. Genato (15 Phil., 170, 175), this court,
speaking through Mr. Justice Torres, said ". . . the right of the ownership of electric current is secured by
article 517 and 518 of the Penal Code; the application of these articles in cases of subtraction of gas, a
fluid used for lighting, and in some respects resembling electricity, is confirmed by the rule laid down in the
decisions of the supreme court of Spain of January 20, 1887, and April 1, 1897, construing and enforcing
the provisions of articles 530 and 531 of the Penal Code of that country, articles identical with articles 517
and 518 of the code in force in these Islands." These expressions were used in a case which involved the
subtraction and appropriation of electrical energy and the court held, in accordance with the analogy of the
case involving the theft of gas, that electrical energy could also be the subject of theft. The same
conclusion was reached in U.S. vs. Carlos (21 Phil., 553), which was also a case of prosecution for
stealing electricity.

The precise point whether the taking of gas may constitute larceny has never before, so far as the present
writer is aware, been the subject of adjudication in this court, but the decisions of Spanish, English, and
American courts all answer the question in the affirmative. (See U.S. vs. Carlos, 21 Phil., 553, 560.)

In this connection it will suffice to quote the following from the topic "Larceny," at page 34, Vol. 17, of
Ruling Case Law:

There is nothing in the nature of gas used for illuminating purposes which renders it incapable of being
feloniously taken and carried away. It is a valuable article of merchandise, bought and sold like other
personal property, susceptible of being severed from a mass or larger quantity and of being transported
from place to place. Likewise water which is confined in pipes and electricity which is conveyed by wires
are subjects of larceny."

As to the amount and value of the gas appropriated by the accused in the period during which he admits
having used it, the proof is not entirely satisfactory. Nevertheless we think the trial court was justified in
fixing the value of the gas at P2 per month, which is the minimum charge for gas made by the gas
company, however small the amount consumed. That is to say, no person desiring to use gas at all for
domestic purposes can purchase the commodity at a lower rate per month than P2. There was evidence
before the court showing that the general average of the monthly bills paid by consumers throughout the
city for the use of gas in a kitchen equipped like that used by the accused is from P18 to 20, while the
average minimum is about P8 per month. We think that the facts above stated are competent evidence;
and the conclusion is inevitable that the accused is at least liable to the extent of the minimum charge of
P2 per month. The market value of the property at the time and place of the theft is of court the proper
value to be proven (17 R.C.L., p. 66); and when it is found that the least amount that a consumer can take
costs P2 per months, this affords proof that the amount which the accused took was certainly worth that
much. Absolute certainty as to the full amount taken is of course impossible, because no meter wad used;
but absolute certainty upon this point is not necessary, when it is certain that the minimum that could have
been taken was worth a determinable amount.

It appears that before the present prosecution was instituted, the accused had been unsuccessfully
prosecuted for an infraction of section 504 of the Revised Ordinances of the city of Manila, under a
complaint charging that the accused, not being a registered installer of gas equipment had placed a gas
installation in the house at No. 443, Calle Evangelista. Upon this it is argued for the accused that, having
been acquitted of that charge, he is not now subject to prosecution for the offense of theft, having been
acquitted of the former charge. The contention is evidently not well-founded, since the two offenses are of
totally distinct nature. Furthermore, a prosecution for violation of a city ordinance is not ordinarily a bar to a
subsequent prosecution for the same offense under the general law of the land. (U.S. vs. Garcia Gavieres,
10 Phil., 694.)

The conclusion is that the accused is properly subject to punishment, under No. 5 of article 518 of the
Penal Code, for the gas taken in the course of two months a the rate of P2 per month. There being no
aggravating or attenuating circumstance to be estimated, it results that the proper penalty is two months
and one day of arresto mayor, as fixed by the trial court. The judgment will therefore be affirmed, with costs
against the appellant, it being understood that the amount of the indemnity which the accused shall pay to
the gas company is P4, instead of P2, with subsidiary imprisonment for one day in case of insolvency. So
ordered.

Mapa, C.J., Araullo, Malcolm and Villamor, JJ., concur.

G.R. No. L-50466 May 31, 1982

CALTEX (PHILIPPINES) INC., petitioner,

vs.
CENTRAL BOARD OF ASSESSMENT APPEALS and CITY ASSESSOR OF PASAY, respondents.

AQUINO, J.:

This case is about the realty tax on machinery and equipment installed by Caltex (Philippines) Inc. in its
gas stations located on leased land.

The machines and equipment consists of underground tanks, elevated tank, elevated water tanks, water
tanks, gasoline pumps, computing pumps, water pumps, car washer, car hoists, truck hoists, air
compressors and tireflators. The city assessor described the said equipment and machinery in this
manner:

A gasoline service station is a piece of lot where a building or shed is erected, a water tank if there is any is
placed in one corner of the lot, car hoists are placed in an adjacent shed, an air compressor is attached in
the wall of the shed or at the concrete wall fence.

The controversial underground tank, depository of gasoline or crude oil, is dug deep about six feet more or
less, a few meters away from the shed. This is done to prevent conflagration because gasoline and other
combustible oil are very inflammable.

This underground tank is connected with a steel pipe to the gasoline pump and the gasoline pump is
commonly placed or constructed under the shed. The footing of the pump is a cement pad and this cement
pad is imbedded in the pavement under the shed, and evidence that the gasoline underground tank is
attached and connected to the shed or building through the pipe to the pump and the pump is attached and
affixed to the cement pad and pavement covered by the roof of the building or shed.

The building or shed, the elevated water tank, the car hoist under a separate shed, the air compressor, the
underground gasoline tank, neon lightThes signboard, concrete fence and pavement and the lot where
they are all placed or erected, all of them used in the pursuance of the gasoline service station business
formed the entire gasoline service-station.

As to whether the subject properties are attached and affixed to the tenement, it is clear they are, for the
tenement we consider in this particular case are (is) the pavement covering the entire lot which was
constructed by the owner of the gasoline station and the improvement which holds all the properties under
question, they are attached and affixed to the pavement and to the improvement.

The pavement covering the entire lot of the gasoline service station, as well as all the improvements,
machines, equipments and apparatus are allowed by Caltex (Philippines) Inc. ...

The underground gasoline tank is attached to the shed by the steel pipe to the pump, so with the water
tank it is connected also by a steel pipe to the pavement, then to the electric motor which electric motor is
placed under the shed. So to say that the gasoline pumps, water pumps and underground tanks are
outside of the service station, and to consider only the building as the service station is grossly erroneous.
(pp. 58-60, Rollo).

The said machines and equipment are loaned by Caltex to gas station operators under an appropriate
lease agreement or receipt. It is stipulated in the lease contract that the operators, upon demand, shall
return to Caltex the machines and equipment in good condition as when received, ordinary wear and tear
excepted.

The lessor of the land, where the gas station is located, does not become the owner of the machines and
equipment installed therein. Caltex retains the ownership thereof during the term of the lease.

The city assessor of Pasay City characterized the said items of gas station equipment and machinery as
taxable realty. The realty tax on said equipment amounts to P4,541.10 annually (p. 52, Rollo). The city
board of tax appeals ruled that they are personalty. The assessor appealed to the Central Board of
Assessment Appeals.
The Board, which was composed of Secretary of Finance Cesar Virata as chairman, Acting Secretary of
Justice Catalino Macaraig, Jr. and Secretary of Local Government and Community Development Jose
Roo, held in its decision of June 3, 1977 that the said machines and equipment are real property within
the meaning of sections 3(k) & (m) and 38 of the Real Property Tax Code, Presidential Decree No. 464,
which took effect on June 1, 1974, and that the definitions of real property and personal property in articles
415 and 416 of the Civil Code are not applicable to this case.

The decision was reiterated by the Board (Minister Vicente Abad Santos took Macaraig's place) in its
resolution of January 12, 1978, denying Caltex's motion for reconsideration, a copy of which was received
by its lawyer on April 2, 1979.

On May 2, 1979 Caltex filed this certiorari petition wherein it prayed for the setting aside of the Board's
decision and for a declaration that the said machines and equipment are personal property not subject to
realty tax (p. 16, Rollo).

The Solicitor General's contention that the Court of Tax Appeals has exclusive appellate jurisdiction over
this case is not correct. When Republic act No. 1125 created the Tax Court in 1954, there was as yet no
Central Board of Assessment Appeals. Section 7(3) of that law in providing that the Tax Court had
jurisdiction to review by appeal decisions of provincial or city boards of assessment appeals had in mind
the local boards of assessment appeals but not the Central Board of Assessment Appeals which under the
Real Property Tax Code has appellate jurisdiction over decisions of the said local boards of assessment
appeals and is, therefore, in the same category as the Tax Court.

Section 36 of the Real Property Tax Code provides that the decision of the Central Board of Assessment
Appeals shall become final and executory after the lapse of fifteen days from the receipt of its decision by
the appellant. Within that fifteen-day period, a petition for reconsideration may be filed. The Code does not
provide for the review of the Board's decision by this Court.

Consequently, the only remedy available for seeking a review by this Court of the decision of the Central
Board of Assessment Appeals is the special civil action of certiorari, the recourse resorted to herein by
Caltex (Philippines), Inc.

The issue is whether the pieces of gas station equipment and machinery already enumerated are subject
to realty tax. This issue has to be resolved primarily under the provisions of the Assessment Law and the
Real Property Tax Code.

Section 2 of the Assessment Law provides that the realty tax is due "on real property, including land,
buildings, machinery, and other improvements" not specifically exempted in section 3 thereof. This
provision is reproduced with some modification in the Real Property Tax Code which provides:

SEC. 38. Incidence of Real Property Tax. There shall be levied, assessed and collected in all
provinces, cities and municipalities an annual ad valorem tax on real property, such as land, buildings,
machinery and other improvements affixed or attached to real property not hereinafter specifically
exempted.

The Code contains the following definitions in its section 3:

k) Improvements is a valuable addition made to property or an amelioration in its condition,

amounting to more than mere repairs or replacement of waste, costing labor or capital and intended to
enhance its value, beauty or utility or to adapt it for new or further purposes.

m) Machinery shall embrace machines, mechanical contrivances, instruments, appliances and

apparatus attached to the real estate. It includes the physical facilities available for production, as well as
the installations and appurtenant service facilities, together with all other equipment designed for or
essential to its manufacturing, industrial or agricultural purposes (See sec. 3[f], Assessment Law).

We hold that the said equipment and machinery, as appurtenances to the gas station building or shed
owned by Caltex (as to which it is subject to realty tax) and which fixtures are necessary to the operation of
the gas station, for without them the gas station would be useless, and which have been attached or
affixed permanently to the gas station site or embedded therein, are taxable improvements and
machinery within the meaning of the Assessment Law and the Real Property Tax Code.

Caltex invokes the rule that machinery which is movable in its nature only becomes immobilized when
placed in a plant by the owner of the property or plant but not when so placed by a tenant, a usufructuary,
or any person having only a temporary right, unless such person acted as the agent of the owner (Davao
Saw Mill Co. vs. Castillo, 61 Phil 709).

That ruling is an interpretation of paragraph 5 of article 415 of the Civil Code regarding machinery that
becomes real property by destination. In the Davao Saw Mills case the question was whether the
machinery mounted on foundations of cement and installed by the lessee on leased land should be
regarded as real property for purposes of execution of a judgment against the lessee. The sheriff treated
the machinery as personal property. This Court sustained the sheriff's action. (Compare with Machinery &
Engineering Supplies, Inc. vs. Court of Appeals, 96 Phil. 70, where in a replevin case machinery was
treated as realty).

Here, the question is whether the gas station equipment and machinery permanently affixed by Caltex to
its gas station and pavement (which are indubitably taxable realty) should be subject to the realty tax. This
question is different from the issue raised in the Davao Saw Mill case.

Improvements on land are commonly taxed as realty even though for some purposes they might be
considered personalty (84 C.J.S. 181-2, Notes 40 and 41). "It is a familiar phenomenon to see things
classed as real property for purposes of taxation which on general principle might be considered personal
property" (Standard Oil Co. of New York vs. Jaramillo, 44 Phil. 630, 633).

This case is also easily distinguishable from Board of Assessment Appeals vs. Manila Electric Co., 119
Phil. 328, where Meralco's steel towers were considered poles within the meaning of paragraph 9 of its
franchise which exempts its poles from taxation. The steel towers were considered personalty because
they were attached to square metal frames by means of bolts and could be moved from place to place
when unscrewed and dismantled.

Nor are Caltex's gas station equipment and machinery the same as tools and equipment in the repair shop
of a bus company which were held to be personal property not subject to realty tax (Mindanao Bus Co. vs.
City Assessor, 116 Phil. 501).

The Central Board of Assessment Appeals did not commit a grave abuse of discretion in upholding the city
assessor's is imposition of the realty tax on Caltex's gas station and equipment.

WHEREFORE, the questioned decision and resolution of the Central Board of Assessment Appeals are
affirmed. The petition for certiorari is dismissed for lack of merit. No costs.

SO ORDERED.

Barredo (Chairman), Guerrero, De Castro and Escolin, JJ., concur.

Concepcion, Jr. and Abad Santos, JJ., took no part.

G.R. No. L-32917 July 18, 1988

JULIAN S. YAP, petitioner,

vs.
HON. SANTIAGO O. TAADA, etc., and GOULDS PUMPS INTERNATIONAL (PHIL.), INC.,
respondents.

Paterno P. Natinga for private respondent.

NARVASA, J.:

The petition for review on certiorari at bar involves two (2) Orders of respondent Judge Taada 1 in Civil
Case No. 10984. The first, dated September 16, 1970, denied petitioner Yap's motion to set aside
execution sale and to quash alias writ of execution. The second, dated November 21, 1970, denied Yap's
motion for reconsideration. The issues concerned the propriety of execution of a judgment claimed to be
"incomplete, vague and non-final," and the denial of petitioner's application to prove and recover damages
resulting from alleged irregularities in the process of execution.

The antecedents will take some time in the telling. The case began in the City Court of Cebu with the filing
by Goulds Pumps International (Phil.), Inc. of a complaint against Yap and his wife seeking recovery of
P1,459.30 representing the balance of the price and installation cost of a water pump in the latter's
premises. 4 The case resulted in a judgment by the City Court on November 25, 1968, reading as follows:

When this case was called for trial today, Atty. Paterno Natinga appeared for the plaintiff Goulds and
informed the court that he is ready for trial. However, none of the defendants appeared despite notices
having been served upon them.

Upon petition Atty. Natinga, the plaintiff is hereby allowed to present its evidence ex-parte.

After considering the evidence of the plaintiff, the court hereby renders judgment in favor of the plaintiff and
against the defendant (Yap), ordering the latter to pay to the former the sum of Pl,459.30 with interest at
the rate of 12% per annum until fully paid, computed from August 12, 1968, date of the filing of the
complaint; to pay the sum of P364.80 as reasonable attorney's fees, which is equivalent " to 25% of the
unpaid principal obligation; and to pay the costs, if any.

Yap appealed to the Court of First Instance. The appeal was assigned to the sala of respondent Judge
Taada. For failure to appear for pre-trial on August 28, 1968, this setting being intransferable since the
pre-trial had already been once postponed at his instance, 5 Yap was declared in default by Order of
Judge Taada dated August 28, 1969, 6 reading as follows:

When this case was called for pre-trial this morning, the plaintiff and counsel appeared, but neither the
defendants nor his counsel appeared despite the fact that they were duly notified of the pre-trial set this
morning. Instead he filed an Ex-Parte Motion for Postponement which this Court received only this
morning, and on petition of counsel for the plaintiff that the Ex-Parte Motion for Postponement was not filed
in accordance with the Rules of Court he asked that the same be denied and the defendants be declared in
default; .. the motion for the plaintiff being well- grounded, the defendants are hereby declared in default
and the Branch Clerk of Court ..is hereby authorized to receive evidence for the plaintiff and .. submit his
report within ten (10) days after reception of evidence.

Goulds presented evidence ex parte and judgment by default was rendered the following day by Judge
Taada requiring Yap to pay to Goulds (1) Pl,459.30 representing the unpaid balance of the pump
purchased by him; (2) interest of 12% per annum thereon until fully 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. Notice of the
judgment was served on Yap on September 1, 1969. 7

On September 16, 1969 Yap filed a motion for reconsideration. 8 In it he insisted that his motion for
postponement should have been granted since it expressed his desire to explore the possibility of an
amicable settlement; that the court should give the parties time to arrive at an amicable settlement failing
which, he should be allowed to present evidence in support of his defenses (discrepancy as to the price
and breach of warranty). The motion was not verified or accompanied by any separate affidavit. Goulds
opposed the motion. Its opposition 9 drew attention to the eleventh-hour motion for postponement of Yap
which had resulted in the cancellation of the prior hearing of June 30, 1969 despite Goulds' vehement
objection, and the re-setting thereof on August 28, 1969 with intransferable character; it averred that Yap
had again sought postponement of this last hearing by another eleventh-hour motion on the plea that an
amicable settlement would be explored, yet he had never up to that time ever broached the matter, 10 and
that this pattern of seeking to obtain last-minute postponements was discernible also in the proceedings
before the City Court. In its opposition, Goulds also adverted to the examination made by it of the pump, on
instructions of the City Court, with a view to remedying the defects claimed to exist by Yap; but the
examination had disclosed the pump's perfect condition. Yap's motion for reconsideration was denied by
Order dated October 10, 1969, notice of which was received by Yap on October 4, 1969. 11

On October 15, 1969 Judge Taada issued an Order granting Goulds' Motion for Issuance of Writ of
Execution dated October 14, 1969, declaring the reasons therein alleged to be meritorious. 12 Yap
forthwith filed an "Urgent Motion for Reconsideration of Order" dated October 17, 1969, 13 contending that
the judgment had not yet become final, since contrary to Goulds' view, his motion for reconsideration was
not pro forma for lack of an affidavit of merit, this not being required under Section 1 (a) of Rule 37 of the
Rules of Court upon which his motion was grounded. Goulds presented an opposition dated October 22,
1969. 14 It pointed out that in his motion for reconsideration Yap had claimed to have a valid defense to
the action, i.e., ".. discrepancy as to price and breach of seller's warranty," in effect, that there was fraud on
Goulds' paint; Yap's motion for reconsideration should therefore have been supported by 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 motion for reconsideration to specify the findings or conclusions in
the judgment claimed to be contrary to law or not supported by the evidence, making it a pro forma motion
also incapable of stopping the running of the appeal period. On October 23, 1969, Judge Taada denied
Yap's motion for reconsideration and authorized execution of the judgment.15 Yap sought reconsideration
of this order, by another motion dated October 29, 1969. 16 This motion was denied by Order dated
January 26, 1970. 17 Again Yap moved for reconsideration, and again was rebuffed, by Order dated April
28, 1970. 18

In the meantime the Sheriff levied on the water pump in question, 19 and by notice dated November 4,
1969, scheduled the execution sale thereof on November 14, 1969. 20 But in view of the pendency of
Yap's motion for reconsideration of October 29, 1969, suspension of the sale was directed by Judge
Taada in an order dated November 6, 1969.21

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, the Order of October 23, 1969, insofar as it orders the sheriff to
enforce the writ of execution is hereby suspended.

It appears however that a copy of this Order was not transmitted to the Sheriff "through oversight,
inadvertence and pressure of work" of the Branch Clerk of Court. 22 So the Deputy Provincial Sheriff went
ahead with the scheduled auction sale and sold the property levied on to Goulds as the highest bidder. 23
He later submitted the requisite report to the Court dated November 17, 1969, 24 as well as the "Sheriffs
Return of Service" dated February 13, 1970, 25 in both of which it was stated that execution had been
"partially satisfied." It should be observed that up to this time, February, 1970, Yap had not bestirred
himself to take an appeal from the judgment of August 29, 1969.

On May 9, 1970 Judge Taada ordered the issuance of an alias writ of execution on Gould's ex parte
motion therefor. 26 Yap received notice of the Order on June 11. Twelve (1 2) days later, he filed a "Motion
to Set Aside Execution Sale and to Quash Alias Writ of Execution." 27 As regards the original, partial
execution of the judgment, he argued that

1) "the issuance of the writ of execution on October 16, 1969 was contrary to law, the judgment sought
to be executed not being final and executory;" and

2) "the sale was made without the notice required by Sec. 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, Civil Code).

And with respect to the alias writ, he argued that it should not have issued because

1) "the judgment sought to be executed is null and void" as "it deprived the defendant of his day in
court" and "of due process;"

2) "said judgment is incomplete and vague" because there is no starting point for computation of the
interest imposed, or a specification of the "other expenses incurred in prosecuting this case" which Yap
had also been ordered to pay;

3) "said judgment is defective because it contains no statement of facts but a mere recital of the
evidence; and

4) "there has been a change in the situation of the parties which makes execution unjust and
inequitable" because Yap suffered damages by reason of the illegal execution.

Goulds filed an opposition on July 6, 1970. Yap's motion was thereafter denied by Order dated September
16, 1970. Judge Taada pointed out that the motion had "become moot and academic" since the decision
of August 29, 1969, "received by the defendant on September 1, 1969 had long become final when the
Order for the Issuance of a Writ of Execution was promulgated on October 15, 1969." His Honor also
stressed that

The defendant's Motion for Reconsideration of the Courts decision was in reality one for new trial.
Regarded as motion for new trial it should allege the grounds for new trial, provided for in the Rules of
Court, to be supported by affidavit of merits; and this the defendant failed to do. If the defendant sincerely
desired for an opportunity to submit to an amicable settlement, which he failed to do extra judicially despite
the ample time before him, he should have appeared in the pre- trial to achieve the same purpose.

Judge Taada thereafter promulgated another Order dated September 21, 1970 granting a motion of
Goulds for completion of execution of 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 October 13, 1970, 28 seeking the setting aside not only of this Order 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 30-day 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 merits," by Order dated November 21, 1970. 29

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 ... of September 16, 1970 ... and from the
Order ... of November 21, 1970, ... pursuant to sections 2 and 3 of Republic Act No. 5440." He filed his
petition for review with this Court on January 5, 1971, after obtaining an extension therefor. 30

The errors of law he attributes to the Court a quo are the following: 31

1) refusing to invalidate the execution pursuant to its Order of October 16, 1969 although the judgment
had not then become final and executory and despite its being incomplete and vague;

2) ignoring the fact that the execution sale was carried out although it (the Court) had itself ordered
suspension of execution on November 6, 1969;

3) declining to annul the execution sale of the pump and accessories subject of the action although
made without the requisite notice prescribed for the sale of immovables; and

4) refusing to allow the petitioner to prove irregularities in the process of execution which had resulted
in damages to him.

Notice of the Trial Court's judgment was served on Yap on September 1, 1969. His motion for
reconsideration thereof was filed 15 days thereafter, on September 16, 1969. Notice of the Order denying
the motion was received by him on October 14, 1969. The question is whether or not the motion for
reconsideration which was not verified, or accompanied by an affidavit of merits (setting forth facts
constituting his meritorious defenses to the suit) or other sworn statement (stating facts excusing his failure
to appear at the pre-trial was pro forma and consequently had not interrupted the running of the period of
appeal. It is Yap's contention that his motion was not pro forma for lack of an affidavit of merits, such a
document not being required by Section 1 (a) of Rule 37 of the Rules of Court upon which his motion was
based. This is incorrect.

Section 2, Rule 37 precisely requires that when the motion for new trial is founded on Section 1 (a), it
should be accompanied by an affidavit of merit.

xxx xxx xxx

When the motion is made for the causes mentioned in subdivisions (a) and (b) of the preceding section, it
shall be proved in the manner provided for proof of motions. Affidavit or affidavits of merits shall also be
attached to a motion for the cause mentioned in subdivision (a) which may be rebutted by counter-
affidavits.

xxx xxx xxx 32

Since Yap himself asserts that his motion for reconsideration is grounded on Section 1 (a) of Rule 37, 33
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" this
being in any event clear 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) it was a fatal omission to fail to attach to his motion an affidavit of merits, i.e., an
affidavit "showing the facts (not conclusions) constituting the valid x x defense which the movant may prove
in case a new trial is granted." 34 The requirement of such an affidavit is essential because obviously "a
new trial would be a waste of the court's time if the complaint turns out to be groundless or the defense
ineffective." 35

In his motion for reconsideration, Yap also contended that since he had expressed a desire to explore the
possibility of an amicable settlement, the Court should have given him time to do so, instead of declaring
him in default and thereafter rendering judgment by default on Gould's ex parte evidence.
The bona fides of this desire to compromise is however put in doubt by the attendant circumstances. It was
manifested in an eleventh-hour motion for postponement of the pre-trial which had 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 pre-trial agenda, yet he sought to avoid
appearance at said pre-trial which he knew to be intransferable in character. These considerations and the
dilatory tactics thus far attributable to him-seeking postponements of hearings, or failing to appear therefor
despite notice, not only in the Court of First Instance but also in the City Court proscribe belief in the
sincerity of his avowed desire to negotiate a compromise. Moreover, the disregard by Yap of the general
requirement that "(n)otice of a motion shall be served by the applicant to all parties concerned at least
three (3) days before the hearing thereof, together with a copy of the motion, and of any affidavits and
other papers accompanying it," 36 for which no justification whatever has been offered, also militates
against the bona fides of Yap's expressed wish for an amicable settlement. The relevant circumstances do
not therefore justify condemnation, as a grave abuse of discretion, or a serious mistake, of the refusal of
the Trial Judge to grant postponement upon this proferred ground.

The motion for reconsideration did not therefore interrupt the running of the period of appeal. The time
during which it was pending before the court from September 16, 1969 when it was filed with the
respondent Court until October 14, 1969 when notice of the order denying the motion was received by the
movant could not be deducted from the 30-day period of appeal. 37 This is the inescapable conclusion
from a consideration of Section 3 of Rule 41 which in part declares that, "The "time 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 fails to satisfy the requirements of Rule 37. 38

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 September 16, 1969, the
reglementary period of appeal expired thirty (30) days after September 1, 1969, or on October 1, 1969,
without an appeal being taken by Yap. The judgment then became final and executory; Yap could no
longer take an appeal therefrom or from any other subsequent orders; and execution of judgment correctly
issued on October 15, 1969, "as a matter of right." 39

The next point discussed by Yap, that the judgment is incomplete and vague, is not well taken. It is true
that the decision does not fix the starting time of the computation of interest on the judgment debt, but this
is inconsequential since that time is easily determinable from the opinion, i.e., from the day the buyer (Yap)
defaulted in the payment of his obligation, 40 on May 31, 1968. 41 The absence of any disposition
regarding his counterclaim is also immaterial and does not render the judgment incomplete. Yap's failure to
appear at the pre-trial without justification and despite notice, which caused the declaration of his default,
was a waiver of his right to controvert the plaintiff s proofs and of his right to prove the averments of his
answer, inclusive of the counterclaim therein pleaded. Moreover, the conclusion in the judgment of the
merit of the plaintiff s 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 complaint and of malicious prosecution.

Yap's next argument that the water pump had become immovable property by its being installed in his
residence is also untenable. The Civil Code considers as immovable property, among others, anything
"attached to an immovable in a fixed manner, in such a way that it cannot be separated therefrom without
breaking the material or deterioration of the object." 42 The pump does not fit this description. It could be,
and was in fact separated from Yap's premises without being broken or suffering deterioration. Obviously
the separation or removal of the pump involved nothing more complicated than the loosening of bolts or
dismantling of other fasteners.

Yap's last claim is that in the process of the removal of the pump 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 had thereby suffered actual-damages in an amount of
not less than P 2,000.00, as well as moral damages in the sum of P 10,000.00 resulting from his
deprivation of the use of his water supply; but the Court had refused to allow him to prove these acts and
recover the damages rightfully due him. Now, as to the loss of his water supply, since this arose from acts
legitimately done, the seizure on execution of the water pump in enforcement of a final and executory
judgment, Yap most certainly is not entitled to claim moral or any other form of damages therefor.

WHEREFORE, the petition is DENIED and the appeal DISMISSED, and the Orders of September 16, 1970
and November 21, 1970 subject thereof, AFFIRMED in toto. Costs against petitioner.
Cruz, Gancayco, Grio-Aquino and Medialdea, JJ., concur.