BIÑAN TRANSPORTATION COMPANY, INC., PETITIONER, VS. FIDEL IBAÑEZ, ETC., ET AL., RESPONDENTS.

This is a petition for certiorari against the respondents on
the ground that the respondent judge acted without jurisdiction or with grave
abuse of discretion in issuing the order of execution dated June 28, 1947, of a
judgment rendered by the Court of First Instance of Laguna on March 22, 1943,
which is null and void, according to the petitioner, because the latter had not
been notified of the hearing of the case and of the rendition of said judgment
or decision, and this allegation is denied under oath by the other
respondent.

According to the facts appearing from the pleadings and their
annexes, the record of the case having been lost or destroyed during the
Philippine liberation, the Court of First Instance of Laguna, upon motion of the
plaintiffs in said case, now respondents, and notice to the defendant, the
petitioner herein, ordered the reconstitution of the pleadings and of the
decision lost or destroyed and declared them reconstituted on December 20, 1946.
The petitioner, alleging that she became aware of the rendition of the said
decision only after its reconstitution, because she had not received notice of
the trial and rendition of the said decision before that time, filed motions for
new trial under Rule 37 and for relief under Rule 38, which were denied by the
respondent Judge on the ground that they were filed after the period fixed by
law had elapsed. The order of the respondent Judge granting the motion for the
issuance of the writ of execution complained of, copy of which is attached as
Annex 6 to the verified answer of said respondent, contained an uncontradicted
recital of the dates in which attorneys for the petitioner were notified or
became aware of the decision in question and filed their motions for new trial
and relief under Rule 37 and 38, and said order reads as follows:

“The following petitions were heard before this Court on June
12, 1947, at 9:00 a. m., in accordance with the order of May 30, 1947:

“(a) Motion for reconsideration filed by Atty. Marcial
G. Mendiola as counsel for the defendant Biñan Transportation Company dated May
19, 1947, praying to reconsider and set aside the order of April 15, 1947, which
revokes a previous order of March 7, 1947, granting the defendant a new
trial;

“(b) A petition addressed to the Clerk of Court dated
May 1, 1947, filed by Atty. Simon Samaniego as counsel for the plaintiffs
praying for the issuance of an alias writ of execution of the reconstituted
decision dated March 22, 1943.

“At the hearing of the said petitions on June 12, 1947,
Attorney Mendiola appeared and argued orally in support of his motion for
reconsideration and upon his request he was given five days from said date
within which to present the transcript of the proceedings of the reconstitution
taken before Judge Juan P. Enriquez. Attorney Samaniego, for the plaintiffs,
presented his written opposition dated June 12, 1947, objecting to the motion
for reconsideration of Atty. Mendiola.

“Pending resolution of the aforementioned petitions, another
petition for relief from effect of judgment dated May 20, 1947, was filed by
Attys. Nabong and Sese as counsel for the defendants without notice of
hearing.

“After a careful consideration of the aforementioned pleadings
of the parties and the affidavits accompanying them, the Court hereby renders
the following resolutions:

“(1) The motion for reconsideration of Atty. Mendiola dated May
19, 1947, is hereby denied in view of the fact that according to the affidavit
of Judge Juan P. Enriquez dated March 24, 1947, before whom the decision of
March 22, 1943, was reconstituted, counsel for the defendant Biñan
Transportation Company, after reading the decision sought to be reconstituted
and was advised that the decision tallies with the docket of the Court, offered
no objection to the reconstitution of said decision which was then and there
ordered reconstitution of said decision which was then and there ordered
reconstituted with the knowledge of said counsel for the defendant Biñan
Transportation Company. As declared in the order of April 15, 1947, which is
hereby reiterated, the defendant Biñan Transportation Company by its counsel,
Atty. Marcial G. Mendiola, was constructively served on December 20, 1946, with
the decision rendered on March 22, 1943.

“(2) That the petition for relief from effect of judgment of
Attorneys Nabong and Sese dated May 20, 1947, is likewise denied. As stated in
the order of April 15, 1947, defendant Biñan Transportation Company was
constructively served on December 20, 1946, with notice of the decision dated
March 22, 1943. Petition for relief from judgment under section 2, Rule 38, of
the Rules of Court must be filed within sixty days after the petitioner learns
of the judgment and not more than six months after said judgment was entered
(section 3, Rule 38). The petition for relief from judgment was filed on June
19, 1947, before which the defendant Biñan Transportation Company, thru counsel,
learned of the decision, and more than six months after the said judgment was
entered on March 22, 1943.

“(3) That the petition of Atty. Simon Samaniego for the
issuance of an alias writ of execution is hereby granted in view of the fact
that the decision of March 22, 1943, has long become final and executory. So
ordered.

“Santa Cruz, Laguna, June 19, 1947.”

Section 69, subsections (m) and (ee) of Rule 123,
provides that it is to be presumed juris tantum that “the official duty
has been regularly performed” and that “the law has been obeyed”, and therefore
the presumption is that the petitioner was notified of the dates of the trial of
the case in which the decision impugned as void was rendered, and of the
rendition of said decision; and that presumption may only be rebutted by
evidence to the contrary presented at a hearing which may be granted by the
Court upon motion for relief filed under Rule 38 of the Rules of Court. But the
respondent Judge denied the motion for relief under said Rule because it was not
filed within the period of time fixed by said Rule 38, according to the above
quoted order of the Court.

If the Court has erred in denying said motion, the proper
remedy would have been appeal according to a long line of decisions of this
Court. Certiorari does not lie because there was appeal, and because the Court
has jurisdiction either to grant or deny the motion of the petitioners, and it
may only err but not exceed its jurisdiction or act with grave abuse of
discretion if it denies the motion.

Petition is therefore denied with costs against the petitioner.
So ordered.

Moran, C.J., Paras, Pablo, Bengzon, Briones, Tuason,
Montemayor, and Reyes, JJ., concur.

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DISSENTING

PERFECTO, J.:

On May 30, 1940, petitioner was sued in the Court of First
Instance of Laguna for damages in the sum of P4,900. Answer to the complaint was
filed on June 3, 1940. Hearing was finally set for January 5, 1942, but on
account of the Japanese invasion, petitioner and its counsel were unable to
attend the hearing on said date.

The hearing, nevertheless, actually took place on February 2,
1943, about which no notice was given to petitioner, who was also hot notified
as to the admission of amendments made to the complaint. On March 22, 1943,
decision was rendered, but no notice thereof was served to petitioner.

On November 26, 1946, petition for the reconstitution of the
records of the case was filed and was set for hearing and granted on December
20, 1946. Surprised at the fact that decision was rendered on March 22, 1943,
notice of which had never been served to it, petitioner filed on January 22,
1947, a motion for new trial upon two grounds: That the trial court had no
jurisdiction to hear and decide the case for lack of notice of the trial to
petitioner and that it also had no jurisdiction upon the substantially amended
complaint, no copy of the amendments having been served to petitioner. The
motion was denied.

On June 19, 1947, petitioner filed a petition for relief from
judgment, which was denied on June 19, 1947, the respondent judge issuing
thereupon a writ of execution on June 28, 1947, by virtue of which a Chevrolet
motor truck of petitioner was seized by the sheriff of Laguna.

Upon the above facts, petitioner prays that the decision
rendered on March 22, 1943, and reconstituted on December 20, 1946, be declared
null and void ab initio, for lack of jurisdiction.

Respondent answered stating, among others, that on December 20,
1946, an order was issued declaring as reconstituted the complaint, answer and
decision in the aforementioned case; on January 10, 1947, motion for the
issuance of a writ of execution, dated December 21, 1946, was granted; on
January 27, 1947, a motion for new trial was filed by petitioner, and the
motion, was granted in an order dated March 7, 1947, under the terms and
conditions specified in said order; on March 24, 1947, plaintiffs filed a motion
for reconsideration and on April 15, 1947, respondent judge issued an order
setting aside the order of March 7, 1947, and declaring that petitioner was
constructively served on December 20, 1946, with notice of the reconstituted
decision; on May 20, 1947, petitioner filed a motion for reconsideration and a
petition for relief from the effect of judgment, and both motion and petition
were denied in an order issued on June 19, 1947, and, pursuant to the latter
order, an alias writ of execution was issued on June 28, 1947.

Upon the undisputed facts in this case, it appears that
petitioner was not notified nor served copy of the amendments to the complaint;
that petitioner was not notified of the hearing of the case which took place on
February 2, 1943; and that petitioner was not notified of the decision rendered
on March 22, 1943. This lack of notice to petitioner deprived the trial court of
jurisdiction to entertain the amended complaint; to hear the case on February 2,
1943, at petitioner’s back; and to render the decision of March 22, 1943.
Consequently, the decision was and is null and void ab initio, as
correctly contended by petitioner.

If the decision was null and void, the trial court has no
jurisdiction to order the issuance of either the original writ of execution or
the alias writ of execution of June 28, 1947.

The contention of respondent judge to the effect that
petitioner was constructively served notice of the decision on December 20,
1946, when petitioner was notified of the reconstitution of the complaint, the
answer, and the decision, is devoid of merit, for the simple fact that notice of
reconstitution is not a notice of decision. Both notices serve different
purposes that cannot be confused or identified with one another.

Even in the false hypothesis that with the reconstitution of
the decision complained of on December 20, 1946, petitioner was constructively
notified thereof, that notice cannot give any validity to a decision which was
and is null and void ab initio for having been rendered without giving
petitioner his day in court, after the hearing which took place on February 2,
1943, of which petitioner was not notified and at which, consequently, he was
not present.

No amount of discussion on legal technicalities may elude the
inevitable consequences of the simple facts in this case, upon which it appears
that petitioner has been denied the benefits of due process and of the equal
protection of the laws. Petitioner is entitled to the relief sought for in the
petition.

Consequently, we vote to grant the petition and to declare null
and void the decision of March 22, 1943, and to set aside the writ of execution
issued on June 28, 1947, with costs against respondents.