C.N. HODGES, PETITIONER, VS. CONRADO BARRIOS, JUDGE OF COURT FIRST INSTANCE OF MANILA, AND JAMES REDFERN, EXECUTOR OF THE ESTATE OF THE DECEASED CLIFFORD J. COOKED, RESPONDENTS.

On December 4, 1946, C.N. Hodges, through Attorneys Gellada and Mirasol of
Iloilo, filed with the Court of First Hodges vs. Barrios Instance of Manila a
written claim for P500 against the estate of Clifford J. Cooke, deceased. In an
order of August 25, 1947, the claim was set for hearing for September 12, 1947,
by Judge Conrado Barrios. On August 30, 1947, Atty. Leon P. Gellada notified
Atty. Bernardino Guerrero, counsel for the executor, that the deposition of C.
N. Hodges would be taken in Iloilo City on September 8 before a notary public
named in the notice. In a motion dated September 2, 1947, Atty. Guerrero moved
the court to order the proposed deposition taken on written interrogatories and
to postpone the hearing to another convenient date. That motion was set by the
movant for Saturday, September 6, with copy thereof sent by airmail to and
received by Atty. Gellada before September 12. However, the pleadings do not
show whether Atty. Guerrero’s motion was taken up on the date set or any other
date. At least Hodges’ attorneys never received notice of any action thereon.

Hodges’ attorneys did not appear in court on September 12, when, it seems,
the claim was called. Because of Hodges’ attorneys’ non-appearance, Judge
Conrado Barrios dismissed the claim “without prejudice” in an order bearing date
September 23.

It is the validity of this order which Hodges impugns. Did the respondent
judge commit a grave abuse of discretion in dismissing the claim?

The attorneys for Hodges were not without reason to believe that the hearing
of their client’s claim would not be held on September 12 because of the other
party’s motion for postponement and because, as has been seen, they were not
prepared on that date to submit their evidence, which was to consist exclusively
of Hodges’ deposition, the manner of taking which was still to be decided by the
court. And it was not the fault of Hodges’ attorneys that the case was not in
shape to be heard. It was the executor’s motion which prevented the taking of
the deposition in time to be ready for presentation on the 12th, and the court’s
omission to act on Atty. Guerrero’s motion on time, if it did ever act on it,
contributed much to the misapprehension of Hodges’ attorneys regarding the date
of hearing of the claim. While Hodges’ counsel had no right to assume that Atty.
Guerrero’s motion for postponement would be granted, and good practice perhaps
demanded that they should have made an inquiry about the matter, yet the court
was not entirely justified in expecting the claimant’s attorneys to come over
from a distant province for a trial which through no fault of theirs could not
be carried out, as the court knew or ought to have known. At the least, the
court might have promptly denied the motion for continuance and informed the
parties that the hearing would take place on the date originally set.

Upon all these considerations, and in view of the further fact that the
absence of Hodges’ attorneys did not in any way retard the due disposal of the
case, since even with their attendance the court could not justly have gone
ahead with the hearing, we are of the opinion that the dismissal of the claim
was utterly unreasonable and unjust.

One argument advanced against the petition is that the dismissal of the claim
allows the petitioner to renew the same. We see no advantage to be gained by
requiring bhe petitioner to file his claim anew. On the other hand, the
suggested step would make it necessary for the parties to start all over again,
filing the same motions and papers that are already in the record. Moreover, the
new claim might, with or without reason, be opposed on the ground that it was
presented beyond the period prescribed by law, thus causing further delay. The
objection to the indicated procedure is aggravated by the fact that the claimant
and his attorneys reside in a province far from Manila, and the amount of the
claim is too small to warrant trips to the capital not needed by the interests
of justice.

The order complained of should be and it is hereby set aside with costs
against the respondent executor.

Pablo, Perfecto, and Bengzon,
JJ., concur.

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CONCURRING

FERIA, J., with whom concur PABLO and
PERFECTO, JJ.:

This petition for certiorari was filed by the petitioner C. N. Hodges against
the respondent Judge Conrado Barrios of the Court of First Instance of Manila,
on the ground that the latter has acted with grave abuse of discretion in
dismissing the claim of the petitioner against the estate of the deceased
Clifford Cooke, because of the failure of the attorney for the petitioner to
appear at the date set for the hearing of the claim.

The petitioner filed on Dec. 4, 1946, through his attorney, a claim for P500
against the estate of Clifford Cooke with the Court of First Instance of Manila
presided by the respondent judge, and, as it was contested by the executor of
said estate, the hearing of the claim was set for Sept. 12, 1947. The attorney
for the petitioner on August 30, 1947, notified the counsel for the executor
that the deposition of C. N. Hodges to be read as evidence at trial was to be
taken on September 8, 1947, in Iloilo City. On September 2, 1947, the attorney
for the respondent executor filed a motion with the court praying that, inasmuch
as going to Iioilo City to attend the taking of the deposition would entail
great expenses, the court order that the deposition be taken on written
interrogatories, and the trial of the claim set for September 12, 1947, be
transferred to another date, in order to enable the parties concerned to
formulate written interrogatories and cross interrogatories. Notice of the
hearing of the motion, set for September 6, was sent by airmail and received by
the attorney for the petitioner in Iloilo, who did not object to the executor’s
petition. The respondent judge did not act on the said petition, and on
September 12, 1947, dismissed the petitioner’s claim without prejudice, on the
ground that the claimant failed to appear at the hearing of the claim on said
date.

Under the provisions of section 3, Rule 30, if the plaintiff or claimant
against the estate of a deceased fails to appear at the time of trial, the court
may or has discretion either to postpone the hearing to another date or dismiss
the claim. When the law does not provide a rule or norm for the court to follow
in deciding a question submitted to it, but leaves it to the court to decide in
one way or another at his discretion, the judge is not absolutely free to act at
his will or whim, but must decide the question, not in accordance with law, for
there would be none, but in conformity with justice or reason and equity in view
of the circumstances of the case. Otherwise the judge would abuse his
discretion.,

It is clear that, taking into consideration the facts in this case above
related, the respondent judge acted with grave abuse of discretion in dismissing
the petitioner’s claim, and not transferring the hearing thereof to another
date. If it were the respondent judge’s intention to proceed with the trial
thereof at the date previously set forth, he should have denied the petition of
the attorney for the executor, and notified in time the claimant of such denial.
In such case, it was to be expected that the latter would have proceeded with
the taking of the oral deposition and appeared at the date set for the trial of
the claim; and if he had failed to appear, the respondent judge would have acted
within his sound discretion in dismissing the petitioner’s claim. But having not
done so, it stands to reason that the attorney for Hodges did not proceed with
the taking of the oral deposition set for September 8, and come to Manila to
appear at the date set for the trial on September 12, 1947, taking into
consideration that the petition of the attorney for the executor was well taken.
And the latter did not act properly in moving for the dismissal of the claim at
the date set for the hearing thereof.

The fact that the dismissal was ordered “without prejudice” does not in the
least justify the action of the court, because such dismissal would always
require the filing of another claim which would necessarily entail expenses and
delay in the deposition of the case. No one should be obliged to bear extra
expenses and labor without necessity. And in the present case, the dismissal
“without prejudice” might be of no avail, because the period for filing claims
against the estate of Clifford J. Cooke had already expired on May 3, 1947
according to Exhibit 2 of the respondent’s answer to the present petition for
certiorari. It is true that a dismissal “without prejudice” does not constitute
an adjudication upon the merits, but the subsistence of a right of action is one
thing, and the enforcement of that right in the course of justice within the
statutory limitation or statute of non claims is another. Without in any way
expressing our opinion on the matter, we may simply quote section 2 of Rule 8
which provides that “at any time before an order of distribution is entered on
application of a creditor who has failed to file his claim within the time
previously limited, the court may, for cause shown and upon such terms as are
equitable, allow such claim to be filed within a time not exceeding one
month.”

In view of all the foregoing, the order of dismissal complained of is hereby
set aside with costs against the respondent executor.

Petition granted.