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[ GR No. L-11724-25, Nov 23, 1959 ]



106 Phil. 501

[ G.R. No. L-11724-25, November 23, 1959 ]




These petitions were filed by the  Wack Wack  Golf and Country Club,  Inc., to review the  decisions  of the Court of Appeals in  two cases involving  the same corporation (CA-G. R. No. 15910-R  and  CA-G.  R. No. 15902-R). As  the issues  raised  in  said  cases relate  to  the  same principle of law, we shall take them up jointly and resolve the questions assigned therein in a  single decision  

Petronilo Arcangel, a  former  employee of  the Wack Wack Golf and Country  Club,  Inc.,  filed  with  the Court of First Instance of Manila a money claim for overtime services rendered to said employer,  for unenjoyed vacation leave, moral damages and attorney's  fees.  The  employer having filed its answer to the complaint, the case was accordingly set for trial.  At the hearing  of  May  6, 1955, however, neither the defendant (employer)  nor its counsel, Balcoff, Poblador and Angel C.  Cruz, appeared notwithstanding the fact  that they  were  duly  notified of the hearing  since  March 22, 1955; hence, the plaintiff was allowed  to continue  presenting  his evidence without the presence of defendant.

On May 10, 1955, the  lower court rendered judgment for  the  plaintiff  employee,  awarding  him a total  of P7,70278.

On May 14, 1955, the law firm of Juan T. Chuidian, on  behalf of the defendant employer, filed a petition to set aside the judgment on the ground of misunderstanding, mistake and excusable neglect, which petition was denied by the lower court in its order of May 31.

The employer appealed from this  order not from the decision on the merits to the Court of Appeals claiming that the court a quo committed a grave abuse of discretion in denying its  petition for relief.  The Court of Appeals, finding  no  justification  for the  employer's  failure  to appear at the hearing, upheld the order appealed from.

There  is  no disagreement  as to the  facts allegedly constituting the mistake,  accident or excusable  negligence upon which the employer's petition for  relief was based. As put down  in petitioner-appellant's brief filed  in the Court of  Appeals,  and adopted by  said court, they are:
"The (records of this case show that  defendant-appellant  (employer)  was represented by the law office  of Balcoff and  Poblador and Angel C.  Cruz from the inception  of this case  up  to  May 14,  1955, when Law Office Juan T. Chuidian  filed its appearance upon being, referred by law office of Balcoff and Poblador on  May 12, 1955 the copy of the decision dated May 10, 1955  of  the Trial Court.

'Sometime before May 5,  1955 defendant-appellant  Wack Wack Golf and  Country  Club, Inc., had manifested its  desire to replace their counsel Messrs.  Paredes,  Balcoff and Poblador  in  this  case with Law Office Juan T. Chuidian. On May 5, 1955 Atty. Jesus Sayoc  of  the undersigned  law  firm  conferred  with  Atty. Angel Cruz of Messrs. Paredes, Balcoff and  Poblador for the purpose of securing the  court file in this case and effect the substitution of attorney.  Unfortunately, Mr. Balcoff  was  not  in the  office  at the moment and Atty. Angel Cruz declared he had no  authority to turn over to Law Office  Juan T.  Chuidian the court papers and  file in this case;  besides, there were  unpaid  bill  due Messrs. Paredes, Balcoff and  Poblador.  Arriving  at the  office, Mr. Jesus Sayoc  advised Mr. Juan  T. Chuidian  of the reluctance of Messrs. Paredes, Balcoff and  Poblador to turn over the court file of  the case to the former.  In view of  this  development, Atty.  Chuidian called  up  Atty. Balcoff by telephone  and it  was  agreed between the two gentlemen that inasmuch as  Attys. Paredes, Balcoff and Poblador  were  still  the attorneys of record  in  the case,  Atty. Balcoff would send a  representative of his law office to appear at the hearing of  the case the following day, May" 6, 1955  in order to ask for postponement of the case.  Consequently, nobody in Law Office Juan T. Chuidian appeared in behalf of defendant-appellant on May 6, 1955 before  the  Trial Court.  As a  matter  of fact, the records of  the case were turned  over to Law Office  Juan  T. Chuidian only on May 13, 1955 after Law Office Juan  T.  Chuidian had  received  on May 12, 1955  through  Messrs.  Paredes, Balcoff and  Poblador a copy  of  the  decision  dated  May  id,  1955 of  the Trial Court.  On  the  other  hand, Atty.  Angel Cruz  or  any  associate lawyer of  Messr.  Paredes, Balcoff and Poblador  did  not appear for defendant-appellant on May 6, 1955."
We are with the Court of Appeals  in  the observation that  as of  May  6, 1955, the law  firm  of  Balcoff  and Poblador and  Angel  C.   Cruz were  still the  employer's counsel  of  record,  the  law  office  of Juan T.  Chuidian having entered  its  appearance in the' case  only on May 14, 1955. As such counsel of record, said law firm must have known that, its impending relief as counsel  for  the defendant  notwithstanding,   it  is  under  obligation  to protect the  client's  interest  (which includes appearance at  the hearing) until its final release from the professional relationship with  such client.  For  its  part,  the court could  recognize no other  representation, on behalf of  the client except such  counsel of record until a formal substitution  of attorney is effected.   Thus, any agreement or  arrangement such counsel of record and its client may reach regarding the  presentation of the  client's  case in court is  purely their private  concern.  Proceedings  in court cannot be made to depend on them.   The  lack of coordination or understanding between the two law firms in the instant  case cannot be considered as a legal excuse or  falling within  the ambit  of excusable negligence  to justify the  granting of  relief from the  order  declaring the client in default or, as in this case, from a decision entered after presentation of evidence in his absence.

Where the defendants were given every reasonable opportunity to try their case and  no legal excuse was presented  for a further adjournment,  and order denying defendant's  motion to set  aside their default and vacate the  judgment against them entered upon such default,  was proper (Centerville Creamery Co. vs. Waxier, 30 N.Y.S. 2d.  232, 262 App.  Div.  1055.)

G. R. No. L-11724  (CA-G. R.  No. 15902-R):

On  February 18, 1953, Antonino D. Bernardo, former official of appellant, filed with the Court of First Instance of Manila a claim against  the Wack Wack  Golf & Country Club, Inc., for overtime pay, unenjoyed vacation and sick leaves from  1946  to 1951  and attorney's fees.   As the employer denied the claim, the case was set for trial.

At the hearing of May  12, 1955, after about 8 previous postponements, nobody appeared for the employer although said defendant was represented from the commencement of the proceeding  by Atty.  Angel C. Cruz and was duly notified  of  the hearing   since March  26, 1955.  Consequently, the  plaintiff-employee was permitted to continue presenting his  evidence before the Deputy Clerk of Court who was  delegated for this purpose.

On May 14, 1955, the lower court adjudged the plaintiff entitled, to  the claim, and sentenced  defendant-employer to pay the total sum of P26,422.78.

On the same day,  May 14, 1955, the employer represented by the  law office  of Juan T. Chuidian,  filed  a petition for relief from the order authorizing the Deputy Clerk of Court to  receive  plaintiff's evidence and  for the re-opening of the  case.   The petition was later  supplemented by another similarly praying for the setting aside of the decision rendered therein, on the ground of accident or excusable 'negligence.  Upon plaintiff's opposition, these petitions were denied  by the court in its order of May 31, 1955.  From  this  order  of  denial, defendant  employer appealed to the Court of Appeals.  On October  30, 1956, the Court of  Appeals  affirmed  the disputed order,  for the reason that under  the circumstances,  there was  no justification for defendant's counsel to anticipate that the Court  would  grant  a motion for postponement  of  the hearing of May 12, 1955. The accident or excusable negligence referred  to  by the new  counsel for defendant employer is stated  in  the petition for relief filed in the lower court, thus:
"1. That defendant  heretofore  had  been  represented by Atty. Angel  C.  Cruz;  that for certain reasons the defendant  recently contracted  the services of Law Office of Juan T. Chuidian to handle this  case; in substitution of  Atty.  Angel  Cruz, the appearance of the undersigned law office  has been filed with this Honorable Court on May 12, 1955;

"2. That it was only  in  the afternoon of  May  11, 1955  that the records of this case  were sent to the  undersigned law office, and that Atty. Juan T. Chuidian  was  then out of town and, consequently,  nobody knew what action to take in this case;

"3. That in the morning of May 12, 1955, Atty. Juan T. Chuidian telephoned the undersigned law office  and  requested that  one of the assistant  attorneys appear at the  sala  in  connection with the scheduled hearing of the  above entitled case, and to move  for the postponement  thereof  on  the obvious  reason that  the undersigned Jaw firm was  not prepared right  then and there  to proceed with the trial of the case  inasmuch as the facts of the case were not then sufficiently known to any of the associate attorney

"4. That when  Attorney Suntay  of  the undersigned law office arrived at the sala of this Honorable Court, he was informed that the case had been called earlier in the calendar and  in view of the failure of any person  to  appear in behalf  of  defendant, the Deputy Clerk of Court was  authorized  to  receive the evidence for the plaintiff;

"5. The subsequent  efforts of Attorney  Suntay to  suspend the reception of  plaintiff's  evidence and postpone the hearing  proved fruitless; ***"
From  the  foregoing  facts,  it  is evident that  Atty. Suntay's appearance (late by  some  35 minutes) at the hearing of the case was solely for  the purpose of securing another postponement of  the  trial;  that his delay was brought  about  by  the  absence  of the  principal counsel in town, and by want of  instructions from the latter as to what action  his  assistants should  take  on the matter; that the records  of the case  were  only  turned over to the  new  counsel on  May 11, and that there  was no time to prepare for the trial.  Under these circumstances, the employer's charge that the  trial court abused its  discretion in denying its petition for  relief from the order authorizing  the reception of plaintiff's  evidence in the absence of defendant  and  the  judgment   rendered in the case,  is premised on the ground (1)  that counsel's, tardiness or delay as well as  his unpreparedness to go  to  trial  are accidental or  may  be considered as  excusable, negligence, arid  (2)  that the  trial court  should have  allowed  the motion for postponement.

Both points find adequate answer in the Court of Appeals ruling which we quote with approval
"The hearing on May 12, 1955 had been fixed, with  the conformity of both parties, as early as March  18, 1955.  Not  only that, but the verbal  order  issued in open court was  supplemented by  a written order, copy of which was received by defendant's  counsel on March 26, 1955.  On the date of the trial  defendant was still represented by Atty. Angel C. Cruz as counsel of record.  Up to then there had  been no substitution of attorneys, nor  had  Attorney  Cruz  withdrawn  his  appearance  in  the case.  Indeed  the record doea riot show  that he  ever  did withdraw his  appearance or filed a motion  for  substitution.  The responsibility  for representing defendant  at  the trial  on May 12, 1955  was therefore still his.  On the other hand if it is true, as alleged by appellant, that the services of Atty. Juan T. Chuidian had  been engaged sometime prior to May  11, 1955  then  it  was the  latter's  duty to file  his  appearance  opportunely and  prepare  for  the  trial on May 12.   It is  to be  presumed  that  in accepting the case Attorney Chuidian knew  that the trial was to be held  on  that date; and he certainly was  not justified in  accepting  the case unless he was prepared to go to trial as  scheduled.  He  had no right to take for granted the liberality of  the court or the generosity of plaintiff by  appearing,  through an assistant of his,  after the case had been actually called on the calendar and while the evidence of the plaintiff was already being  received,  and then only to ask (verbally) for  another postponement.

"All motions  for  postponement   should be  presented  at  such time as is practicable  to prevent the adverse party  from incuring unnecessary expenses  by coming to  trial, otherwise postponement shall be denied.  And a party moving for postponement should be in court  on the day  set  for trial  if  the  motion is not acted upon favorably  before  that  day.  He has no right to rely  either on the liberality of the court, or on the generosity of the  adverse party.' (Moran on Rules of Court, 1952 edition, pp. 651-653, citing Linus vs.  Rovira, 61  Phil., 137; Miranda vs.  Mun. of Navotas, 2  Phil., 667; Quimson vs. Suarez, 64 Phil., 907; Macondray & Co. vs. Paredes, G. R.  No. 38255, Sept. 5, 1933; Sunico vs.  Villapando, 14 Phil., 352.) "
In addition, the records of these two  cases reveal  that even prior to May 5, 1955, defendant-appellant had manifested its  desire to replace its former counsel  Messrs. Paredes, Balcoff & Poblador with  the  law  office of Atty. Juan  T.  Chuidian.   If this  were so, it was  the bounden duty of both law firms to have made  the  necessary arrangement for the protection of the interest  of their client. Their failure to do  so cannot  certainly be considered excusable neglect to the  extent of making the action of the trial  court, as well as the Court  of Appeals in denying relief based  thereon,  an abuse  of  discretion  constituting reversible  error.

Although no longer necessary in  view of the conclusions already reached and  expressed, attention may be  drawn to  the lack of the required affidavits of merit to  support the  petitions for  relief.   While there are  sworn statements on the alleged mistake,  accident and/or excusable negligence,  there is, in G. R. No.  L-11724,  total absence of, and in G. R. No. L-11725, insufficient affidavit showing the facts  constituting the valid defense which the movant may prove  in case a new trial  is granted.   Even  in the latter  case,  the  only reference  made in the affidavit of the  assistant lawyer in the law firm of  Atty.  Chuidian who, as admitted in the pleadings  submitted by them, did not know the facts of  the case, was the statement "that the defendant has  genuine and  bona fide  defenses to the claims interposed  by plaintiff,  more particularly  set out in its Amended  Answer  dated August  4,  1954."   This amended  answer is not  under  oath.  Consequently,  the mere incorporation thereof by reference made by one who had  no knowledge  of the said defenses does not comply with the  requirements  of the rules and decisions on the matter.  The affidavits  of merit must state facts, and not mere conclusions or opinions, otherwise they are not valid.[1]

Anent the question raised by petitioner in both instances regarding the legality of the lower court's order authorizing the  Deputy  Clerk  of  Court  to receive plaintiff's evidence, we again make our own the Court of Appeals ruling, thus:
"Defendant next  contends  that the  trial  Court  acted contrary to law and  gravely  abused  its  discretion when  it  delegated the Deputy Clerk  of Court to receive  plaintiff's evidence.  It  should be borne  in  mind  that  the delegation  was made in view of the absence of defendant  and  his counsel and that  the function  thus delegated was  merely ministerial, namely, the taking down of the testimony of  the witnesses  and  the marking  down of whatever documentary   evidence  would  be presented.  There  could be no occasion for  the exercise of judicial discretion such  as might  have been called for if  the other  party  had been present to object to questions that  were  propounded or to  the admission of exhibits.

It cannot  therefore  be  seriously maintained  that  any prejudice was caused to defendant by the action taken by the Court."
Wherefore,  finding  no error  in the  decisions  of the Court of Appeals sought to be nullified, the petitions filed in these tjwo cases are hereby dismissed, with  costs.   It is so ordered.

Paras,  C. J.,  Bengzon, Padilla, Montemayor, Bautista Angela, Labrador, Reyes, J. B. L., Endencia, and Gutierrez David, JJ. concur.

[1] Estrella vs. Zamora, 5 Phil., 415; Philippine Engineering Co. vs. Argosino, 49 Phil., 983; Coombs vs. Santos, 24 Phil., 446.