[ G.R. No. L-2130, May 30, 1949 ]
FRANCISCO SANCHEZ, PETITIONER, VS. PEDRO SERRANO AND SOTERO RODAS, JUDGE OF COURT OF FIRST INSTANCE OF MANILA, RESPONDENTS.
D E C I S I O N
Without considering the merits or demerits of the motion to set aside filed under Rule 38, we believe the present petition is improper, the remedy being an appeal which has already been interposed. As to the suspension of the execution of the judgment, the remedy si provided in section 5, of said rule. In other words, when the petition for relief under Rule 38 was filed, motion for suspension of the execution of judgment could have been presented then or hereafter under section 5, of said rule, by offering the bond therein provided and if denied it may be renewed on appeal. Such suspension cannot properly be examined in certiorari proceedings separately from the motion to set aside which shall be reviewed on appeal, for it depends in great apart form the circumstances constituting the background of the principal relief to be considered on appeal. Under the circumstances disclosed in the record before us, it is not clear the the refusal to suspend execution is a grave abuse of discretion, it being apparent that petitioner's failure to receive notice of the trial held on November 13 was due to his negligence in leaving Manila without awaiting for the resolution fo the court on his motion for continuance, and also to his failure to provide his law office with some responsible clerk to receive notices, and his first motion for relief was filed only on January 22, 1948.Ozaeta, Paras, Feria, Pablo, Perfecto, Bengzon, Tuason, Montemayor, and Reyes, JJ., concur.