ALLISON J. GIBBS, FINLEY J. GIBBS AND ESTATE OF A.D. GIBBS, PLAINTIFFS, VS. THE COURT OF FIRST INSTANCE OF MANILA(BRANCH V), BUENAVENTURA OCAMPO, EULOGIO RODRIGUEZ, SR., LUZON S…

An action for declaratory relief was brought in the Court of First Instance
of Manila (Civil Case No. 71093). The relief prayed for is a declaration that
the debt of two of the defendants secured by a mortgage on real property is
still unpaid; that said defendants, jointly and severally, are liable to pay it
within 90 days from and after the repeal of the Executive Order on debt
moratorium, and, if not paid within such period, that the mortgaged property
will be sold at public auction to satisfy the mortgage debt, Interests, and
costs; that the mortgage duly recorded on the back of the Torrens certificate of
title covering the mortgaged property, which was cancelled upon a release of the
mortgage executed by the Custodian of Enemy Property of the Japanese Military
Administration on 29 July 1943, is still valid and subsisting, said mortgage
release and cancellation of the mortgage memorandum on the Torrens certificate
of title being null and void; that the mortgage on the property noted on the
Torrens certificate of title covering said property in favor of the other
defendant, the Philippine National Bank, should be cancelled.

The defendants admit the execution of the mortgage in favor.of the
plaintiffs, but deny that they defaulted in the payment of the stipulated
installments and that the release of the mortgage is illegal. They allege that
they were coerced by the Japanese Military Administration to make the payment to
satisfy the mortgage debt owed to the plaintiffs.

After hearing, judgment was rendered as prayed for in the plaintiffs’
complaint. On 26 October 1946, the attorney for the defendants was notified of
the judgment. On 25 November, a motion for extension of time to file a petition
for a new trial was presented. On the following day (26 November), a petition to
set aside the judgment was filed. On 24 December, the petition was denied, On 27
December, the attorney for the defendants was notified of the order denying the
petition to set aside the judgment; and on the same date, he filed the notice of
appeal, the record on appeal, and the appeal bond. Plaintiffs objected to the
allowance of the record on appeal, on the ground that the judgment had become
final on 25 November 1946, the date of the expiration of the reglementary
period. On 14 May 1947, the trial court, presided over by the Hon. Buenaventura
Ocampo, allowed the record on appeal, holding that the order entered by Judge
Gutierrez David on 24 December 1946 denying the petition to set aside the
judgment for lack of merit was tantamount to granting the extension of time
asked by the defendants. In view of the allowance of the record on appeal,
petitioners instituted this original action to annul the order of 14 May 1947
which allowed the record on appeal, on the ground that the judgment in said
civil case had become final and executory.

Counsel for the respondents allege in their answer that from 26 October, when
they were served with a copy of the judgment rendered by the respondent court in
the case, to 25 November, the last of the 30-day period, attorney Jose W.
Diokno, was alone handling the cases of the law office, because the other
partner, Ramon Diokno, was in the United States, prepared several briefs and
pleadings in three cases, appeared at the trial of several cases pending la the
Electoral Tribunal of the Senate and in the Courts of First Instance of Manila
and Occidental Negros, and went to the province of Pampanga to Interview
witnesses to be presented in the protest pending in the Electoral Tribunal of
the Senate and in a criminal case filed in Mabalacat, Pampanga, against
Alejandro Simpauco, representative for the first district of Tarlac; that for
that reason, on 20 November the draft of the petition to set aside the judgment
was not finished, and anticipating that he could not file it on the last day of
the reglementary period, on said date he dictated a motion for extension of
time; that this was typed on 21 November while he was attending the hearing of
the protest before the Electoral Tribunal of the Senate, but it was not finished
until the afternoon of that day; that on the following day, 22 November, he went
to Pampanga in connection with Criminal Case No. 390 entitled “People
vs. Simpauco et al.,” and to gather evidence to be presented in the
electoral protest referred to, but before departing for Pampanga, he instructed
Ceferino Torres, one of his stenographers, to serve a copy of the motion for
extension of time upon the Plaintiffs and to file the original in court after
the service; that a copy thereof was served on the plaintiffs ia the morning of
22 November, but the original was not filed en that day; that he returned from
Pampanga in the night of 22 November and only learned in the morning of 23
November, which was Saturday, that the motion for extension had not been filed;
that in view of that fact, and believing that by exerting efforts he might
finish the petition to set aside the judgment en the 25th of November, he asked
the stenographers whether they could finish in one day the typing of the
petition to set aside the judgment, and the stenographers answered him that they
could; that he asked one of his stenographers to work the following day, 24
November, which was Sunday, and by working the whole afternoon of 23 November,
the whole day and night of 24 November, he finished the draft of the petition to
set aside the judgment before 8 o’clock in the morning of 25 November, and upon
arrival of the stenographers in the office in the morning of that day, he
distributed the work among them with instructions to finish the typing of the
petition before 4 o’clock in the afternoon of that day, the stenographers
assuring him that they could do it; that in the morning of 25 November he
appeared at the trial of a criminal case in the Court of First Instance of
Manila (People vs. Lezano et al.), and upon his return to the office at
noon he found out that the stenographers had not finished the typing of the
petition to set aside the judgment, and foreseeing that they could not finish it
before 4:00 p.m. he caused to be filed the motion for extension of time referred
to above, a copy of which had already been served upon the plaintiffs on 22
November; that the typing of the petition to set aside the judgment was finished
by the stenographers at 4 o’clock in the afternoon of 25 November, and after the
pages had been arranged, sewed and corrected, he sent stenographer Cesar Lerum
to serve a copy of the petition upon the plaintiffs, and after serving it to
file the original in court; that a copy thereof was served upon the plaintiffs
before 5:00 p.m. of 25 November, the last day of the reglementary period, and
immediately thereafter stenographer Cesar Lerum repaired to the office of the
clerk of the Court of First Instance of Manila to file the original, but he
(Lerum) found out that the clerk in the office of the clerk of court in charge
of the filing of pleadings had gone home; that he (Lerum) attempted to deliver
it to an employee who happened to be in the office of the clerk of court but the
latter refused to accept it for filing telling him to return early in the
morning of the following day; that on 26 November, said stenographer returned to
the office of the clerk of court and filed the original petition to set aside
the judgment; that at the hearing of the petition on 7 December both parties
submitted it without argument; that at such hearing the plaintiffs did not
object to the petition to set aside the judgment on the ground that it had been
filed beyond the reglementary period; that on 24 December, the petition was
denied, and a copy of the order denying it was served upon the attorney for the
defendants on 27 December; that on the last mentioned date, the notice of
appeal, the record on appeal, and the appeal bond were filed; that on 2 January
1947, the plaintiffs objected to the allowance of the record on appeal, on the
ground that the petition to set aside having been filed on 26 November 1946, or
beyond the reglementary period, the judgment had become final and executory;
that the question as to whether the petition had been filed on time was
discussed in several pleadings filed by both parties, the defendants setting
forth in their pleadings the facts hereinabove mentioned which were supported by
the oath of the attorney for the defendants and of his stenographers; and that
on 14 May, the respondent court overruled the objection of the plaintiffs,
allowed the record on appeal, and ordered its certification to this Court.

The motion for extension of time filed on 25 November, or within the time
prescribed by the rules of court, did not stop the running of the reglementary
period for perfecting the appeal (Alejandro vs. Endencia, 64 Phil.
321). The petition to set aside the judgment was filed on the following day
under the circumstances hereinabove described. The service of a copy thereof the
previous day on the attorneys for the plaintiffs did not make the filing thereof
as of the date of service. But the trial court held that the order entered on 24
December denying the petition to set aside the judgment was equivalent to
granting the motion for extension of time. Whether a motion for extension of
time to submit a petition for new trial filed on the last day of the
reglementary period may be deemed granted by an order denying a petition to set
aside the judgment filed the day following the filing of the motion for
extension of time need not be passed upon, because after a careful and mature
consideration of the facts submitted to the trial court at the hearing held for
the allowance of the record on appeal and reiterated in this original case
before us, which caused the delay of one day in tie filing of the petition to
set aside the judgment, we have case to the conclusion that such delay was due
to excusable neglect. We believe that the trial court, after due consideration
of the circumstances surrounding the failure of the defendant’s attorney to file
the petition to set aside the judgment within the 30-day period required by the
roles of court, was of the opinion that the delay was due to excusable neglect,
and for that reason relieved the defendants from the effect thereof by allowing
the record on appeal. True, the trial court allowed it upon the express ground
that the order denying the petition to set aside the judgment was an Implied
grant of the motion for extension of time, but we believe that it also took into
consideration the facts surrounding the delay in the filing of the petition to
set aside the judgment, and in addition to the express ground such facts weighed
upon its mind and led it to allow the record on appeal. As the trial court
relieved the defendants from the effect of their attorney’s failure to file the
petition to set aside the judgment within the reglementary period on the ground
of excusable neglect, the filing thereof on the 31st day after notice of
judgment still within the period (Santiago vs. Valenzuela, L-670, 30
April 1947, 44 Off. Gaz., 3291). On 27 December, the attorney for the defendants
was notified of the order entered on 24 December denying the petition to set
aside the judgment. On that same date (27 December), the notice of appeal, the
record on appeal, and the appeal bond were filed. Such being the case, the trial
court did not act without jurisdiction, did not exceed its jurisdiction, nor did
it abuse its discretion, when it allowed the record on appeal and ordered its
certification to this Court.

Petition denied, without costs.

Moran, C.J., Parás, Feria, Pablo,
Perfecto, Hilado, Briones, and Tuason, JJ., concur.