On October 31,  1927, Francisco Palabrica signed a promissory note in favor of  the  plaintiff in the  sum  of P350 payable on April  30, 1928,  with  interest thereon  at the rate of 10% per annum.   On the same date he and his wife Paula Palencia executed  a mortgage on a parcel  of land described in original certificate  of title No. 23617 to secure the  payment  of  said promissory note.   On  September 28, 1936, the  plaintiff secured a personal  judgment  on said promissory note in the justice of the peace court of Passi, Iloilo, against Francisco  Palabrica for  the  total  sum of P592.36, including accrued interest and attorney's fees.

For reasons not appearing  in the record, that judgment seems not to have been executed; for on September 23, 1938, the plaintiff commenced a new action in the Court of First Instance of Iloilo against  Teopisto Palabrica, Romulo Palabrica, Joaquin Palabrica,  as heirs of the spouses Francisco Palabrica and Paula Palencia, both of whom had  demised, and Rufino Palabrica, to foreclose the mortgage above mentioned.  Among the allegations of the complaint in that new action (Civil Case No. 11320 of the Court of First Instance of Iloilo, G. R. No. 46990 of this Court) were the following:

"Que los herederos Teopisto Palabrica, Romulo Palabrica y Joaquin  Palabrica han sido incluidos en esta  demanda sobre la ejecucion de la hipoteca  como partes real y verdaderamente interesadas en este asunto y como unicos herederos de los esposos ya difuntos Francisco Palabrica y Paula Palencia, deudores hipotecarios."

"Que el Sr. Rufino Palabrica, uno de los aqui demandados, otorgo y firmo una escritura de obligacion como fiador solidario de Francisco Palabrica el mes de julio de 1929, segun aparece en  la escritura de obligacion a favor de la demandante, copia de la cual exhibito 'B se hace parte integrante de esta demanda."

The defendants demurred to the complaint on the grounds that the plaintiff had no cause of action against the defendants, and that the court had no jurisdiction to take cognizance of the case because the plaintiff should present  its claim to the commissioners on claims of the intestacy of the spouses Francisco Palabrica and Paula  Palencia, deceased. That demurrer was sustained by  the court,  which at the same  time  dismissed  the  complaint without costs.   Upon appeal, this Court affirmed the order of  dismissal in its decision promulgated on January 30,1940.

On  March  15, 1940, the plaintiff commenced the present action (the third of the series) in the justice of the peace court  of  Passi against Rufino Palabrica, as one of the solidary guarantors of Francisco  Palabrica on the promissory note above  mentioned.   It appears that aside from  the real estate  mortgage above alluded to (which by the way was not recorded and for that reason, among others,  its attempted foreclosure failed), Rufino Palabrica and Paula Palencia, in  July, 1929,  guaranteed the payment  to  the plaintiff  of the promissory note in question in the following words:

"Statement of sureties

"We, the undersigned, Rufino Palabrica and Paula Palencia, hereby guarantee, Jointly and severally,. with the borrower, the  fulfillment of  this obligation  on the date of its maturity, and promise  to pay, in case of insolvency of the borrower or his refusal to pay the entire amount of this note, with interest at 10 per cent per annum, beginning the date on which said obligation falls due, plus 10 per cent of the principal for attorney's fees, plus cost and other legal charges, in case a suit be brought on this note, binding ourselves Jointly and severally to pay the same, and that the creditor may legally proceed against us without the necessity of exhausting the borrower's property.  It is expressly understood  and agreed that the  creditor may grant the borrower any extension or extensions of time allowed by law for the payment of this note, without thereby affecting in any degree our obligation as sureties.

"We declare ourselves to be solvent each and every one of us for the full amount of this  note, binding ourselves that during the existence of this obligation we will not alienate, sell, dispose or transfer our property without leaving part thereof equal in value to that for which we have obligated ourselves to pay."  (Exhibit A.)

After due hearing, the justice of the peace dismissed the case on the ground that the action was barred by the previous judgment in  civil case No. 11320 of the Court of First Instance of Iloilo,  which was affirmed by this Court  in G. R. No. 46990.  Upon appeal,  the Court of First  Instance absolved the defendant from the complaint on  the  same ground stated by the justice of the peace court.

The only question  raised in this  appeal is whether the plea of res judicata interposed  by the defendant is valid or not.  Civil Case No. 11320 was a mixed action of foreclosure of mortgage against  the heirs  of Francisco Palabrica and a personal action against Rufino Palabrica as solidary guarantor or surety of Francisco Palabrica, on the same principal obligation secured by said mortgage.  In disposing of the case insofar as the present defendant was  concerned, this Court said:

"La accion contra  el co-heredero  Rufino Palabrica para el cumplimiento de la garantia  o fianza que presto  no puede mantenerse separadamente en el asunto en vista de que la accion se ha ejercitado, aparentemente, para recobrar unicamente una deuda que dejaron de pagar los finados conyuges Francisco Palabrica y Paula Palencia."

It is apparent that the decision of this  Court in  G. R. No. 46990, insofar as the liability of the defendant Rufino Palabrica was concerned, was not a decision on the merits. The  Court held in effect that the said defendant had been misjoined in that action, "which apparently was instituted only to recover a debt that the deceased spouses Francisco Palabrica and Paula Palencia had failed to pay."  The Court did not pass upon the defendant's liability on his guaranty hereinbefore  quoted.  That question cannot, therefore, be considered res adjudicata.

The plaintiff has the right to bring the  present action against the defendant, inasmuch as the  latter guaranteed jointly and severally with the borrower the payment of the latter's promissory note and bound himself to pay the  same in case of the borrower's insolvency or his refusal to pay. It is an undisputed fact that the borrower Francisco Palabrica refused during his lifetime to pay the promissory note in question notwithstanding that judgment had been rendered against  him by the  justice of the peace  court of Passi, Iloilo.  It was admitted during the trial of this case that with the exception of ^10, the amount of the promissory note in  question had not  been paid notwithstanding due demand.

Wherefore,  the judgment of the trial court is  reversed and the defendant is hereby adjudged to pay to the plaintiff the  sum  of P 340,  with interest thereon at 10% per annum from May 1, 1930, until the date of payment, plus the sum of P34 as attorney's fees and the costs in the three instances.  So ordered.

Yulo, C.J., Moran, and Bocobo, JJ., concur.

PARAS, J.:  I concur in the result.