JOVENAL R. FERNANDEZ, PLAINTIFF AND APPELLEE, VS. TAN TIONG TICK, ET AL., DEFENDANTS. TAN TIONG TICK, DEFENDANT AND APPELLANT.

This is a direct appeal from the judgment of the Court of First Instance of
Manila, Honorable Carmelino G. Alvendia, presiding, quoted hereunder:

“DECISION

“This is an action, to recover damages arising from the seizure of thirty
long tons of unprepared scrap iron by the defendant Sheriff of Manila at the
instance of defendant Tan Tiong Tick.

“From the evidence presented by the parties, it appears that plaintiff is the
owner of thirty long tons of scrap iron which was salvaged from the U. S. Navy
Base at Sangley Point, Cavite (Exhs. A, B, and C). Said scrap iron was
stockpiled at the scrap yard of Tan Tay Cuan at the Madrigal Compound on
Cristobal Street, Manila.

“In April, 1958 defendant Tan Tiong Tick filed a replevin suit against Tan
Tay Cuan (Civil Case No. 35804, C. F. I., Manila) for the recovery of the scrap
iron allegedly belonging to Tan Tiong Tick and in the possession of Tan Tay Cuan
(Exh. D-1). An order of seizure (Exh. D-2) was issued in due eourse and
defendant Sheriff seized the scrap iron belonging to the herein plaintiff at the
Madrigal Compound.

“Plaintiff filed a third party claim (Exh. E) but because defendant Tan Tiong
Tick filed an indemnity bond in favor of the Sheriff (Exh. F), the scrap iron
seized was not returned to plaintiff.

“In the course of the proceedings in this case, the plaintiff asked for the
dismissal of the complaint insofar as the defendant Sheriff is concerned. This
step on the part of the plaintiff automatically dismisses the complaint against
the bonding company.

“The evidence by the plaintiff shows that the thirty long tons of scrap iron
belonging to plaintiff was worth P50.00 per ton, after deducting the expenses of
preparation. The value of the entire scrap iron of plaintiff which was taken by
defendant Tan Tiong Tick is P1,400.00.

“WHEREFORE, judgment is rendered ordering defendant Tan Tiong Tick to pay
plaintiff the value of his scrap iron in the sum of P1,400.00, plus compensatory
damages which the Court fixes in the sum of P2,000.00; attorney’s fees in the
sum of P250.00 and costs.

“SO ORDERED.”

The Notice of Appeal announces that defendant will raise on appeal the
following legal questions:

“1. Whether the act of the former counsel of the defendant of not pressing
his request for continuance for the second day set for the hearing of this case
to enable the herein defendant to testify and abruptly rested the case would
constitute a confession of judgment and, hence, a valid ground to set aside the
judgment and to reopen the case since counsel was not specially authorized to
confess judgment.

“2. Whether the negligence of the former counsel for the herein defendant in
not informing the defendant that he rested the case and the negligence of the
defendant in not inquiring from his counsel about the status of the case is an
excusable negligence and, hence, a valid ground to set aside the
judgment.”

The brief of appellant contains but one single assignment of error: The trial
court erred in denying appellant’s petition to set aside judgment and reopen the
case. This error, in the language of appellant himself, is predicated on the
following grounds:

“1. That the act of the former counsel of appellant of not pressing his
request for postponement for the second day set for the hearing of the case to
enable the appellant to testify and, instead, abruptly rested the case, is in
effect a confession of judgment and hence a valid ground to set aside the
judgment and to reopen the case since said counsel was specially authorized to
confess judgment;

“2. That the negligence of the former counsel for the herein appellant in not
informing the appellant that he rested1 the case and the negligence of the
appellant in not inquiring from his counsel about the status of the case is an
excusable negligence and hence a valid ground to set aside the judgment.

“3. That the appellant has a good defense inasmuch as he has evidence to
prove that all the scrap iron seized by the Sheriff of Manila in Civil Case No.
35804 belong to him; and

“4. That Exhibits ‘A’ and ‘B’ of the appellee, which formed the basis of his
alleged ownership of thirty (30) tons of scrap iron, show that the alleged scrap
iron of the appellee “were to be deposited at Bacood, Sta. Mesa, Manila, and not
at Cristobal St., Paco, Manila, which is at the opposite bank of the Pasig
River.”

The first two grounds relied upon by appellant involve questions of law; the
last two require review of the evidence presented or offered. The appellant
having chosen to appeal direct to this Court on the announced purpose of raising
only legal questions posed by the first two issues, we shall limit this opinion
and decision accordingly.

The antecedents pertinent to the legal questions raised by appellant are
briefly these:

After the issues have been joined, the case was set for hearing for February
3 and 5, 1959, as to defendant Tan Tiong Tick.^[1] On the first date mentioned plaintiff
testified in his own behalf and was cross-examined by counsel for defendant.
Several documents were presented as exhibits of plaintiff. Thereafter, plaintiff
rested his case. Thereupon, defendant’s counsel called on the Deputy Sheriff of
Manila as his first witness. Two documents (Exhibits 1 and 2) were presented as
evidence. At this juncture, the following proceeding took place:

“Atty. Mapa: At this point I have another witness, the defendant himself, but
he developed flu, and since this case is set for another day, the day alter
tomorrow.

“Court: Why did you not bring a medical certificate?

“Atty. Mapa: I came to know of it this morning when I came to fetch him. I
think it is for the 5th.

“Court: When, they set for two (2) or three (3) days tha purpose is not to
enable the parties to ask for a postponement of the first two (days).

“Atty. Mapa: I realize fully the correctness, but owing to the fact that when
I … I was a little bit late because I came to fetch him he was indisposed. We
request this Honorable Court, in the interest of justice, his testimony will not
be very long, some identification only of certain matters.

“Court: Where are those? The plaintiff might be willing to admit the
genuineness, of those documents, what are those?

“Atty. Mapa: As a matter of fact the testimony of …

“Court: You said merely identification. Identification of the contract? Are
you ready to pay fifty pesos (P50.00) to the plaintiff to reimburse him of his
expenses for having to come again next time?

“Atty. Mapa: We respectfully rest our case by presenting only Exhibit 1
diagram made by the plaintiff of the stockyard in which the alleged thirty (30)
tons were deposited and Exhibit 2, which is also marked as Exhibits D-7.

“Court: Exhibit 2 is also admitted. Submitted.” (Pages 58-60, t.s.n.,
Mallari.)

Subsequently, on April 16, 1959, the court rendered the decision quoted
earlier.

The first legal question propounded by appellant is: Is the act of the
appellant’s counsel of not pressing his request for postponement for the second
day set for the hearing of the case to enable the appellant to testify and,
instead, abruptly rested the case, in effect a confession of judgment and hence
a valid ground, to set aside the judgment and to reopen the case since counsel
was not specially authorized to confess judgment?

We do not think so. Appellant’s attorney has not withdrawn his client’s
defenses, much less consented to an entry of judgment against his client. On the
contrary, the records show that he extensively cross-examined the
plaintiff-appellee and thoroughly scrutinized the documentary evidence for
appellee, which were adduced and offered in evidence. After appellee had rested
his case, appellant’s counsel presented the Deputy Sheriff of Manila as witness
for appellant and adduced documentary evidence, which he requested to be marked
as Exhibits 1 and 2. He then asked for postponement because appellant was not
present, but the trial court would not consent unless counsel would be willing
to pay reasonable expenses to appellee for his having to come to trial again if
postponed. Under the circumstances, counsel, who is not under obligation to pay
the expenses imposed’Lby the court as a condition for the postponement, could do
nothing. His resting the case with the evidence already introduced, whatever it
meant, did not constitute confession of judgment. At most, it might be
considered as a mistake or lack of foresight or preparation on the part of the
attorney. But a client is bound by the action of his counsel in the conduct of a
case and cannot be heard to complain that the result might have been different
had he proceeded differently. (U.S. vs. Umali, 15 Phil., 33; Vivero
vs. Santos, et al., 98 Phil., 500; 52 Off. Gaz., 1424) A client is bound
by the mistake of his lawyer (Montes vs. Court, 48 Phil., 640; Isaac
vs. Mendoza, 89 Phil., 279). As held in a case, “If such grounds
(mistakes, lack of preparation, etc.) were to. be admitted as reasons for
reopening cases, there would never be an end to a suit so long as new counsel
could be employed who could allege and show that prior counsel had not been
sufficiently diligent, or experienced, or learned.” (De Flores vs.
Reynolds, Fed. Case No. 3742, 16 Blatch [U. S.] 397, cited in Vivero vs.
Santos, et al., supra.)

Appellant next inquires: Is the negligence of counsel in not informing
appellant that he rested the case, and the negligence of appellant in not
inquiring from his counsel about the status of the case an excusable negligence
and, hence, a valid ground to set aside the judgment and reopen the case?

Again, we do not think so. Negligence is excusable where it is caused by
failure to receive notice of the action or the trial, by a genuine and excusable
mistake or miscalculation, by reliance upon assurances given by those upon whom
the party had a right to depend, as the adverse party or counsel retained in the
case, or a competent adviser, that it would not be necessary for him to take an
active part in the case, or that the suit would not be prosecuted, by relying on
another person to attend to the case for him, when such other person promised to
do so, or was chargeable with that duty or by a well-founded belief that the
case would not be reached for trial as it was in fact reached, or by other
circumstances not involving fault of the moving party (34 C. J. 303, cited in 1
(part II) Francisco, Rules of Court in the Philippines, 1957 Ed., pp. 774-775).
The standard of care required of a defendant is that which an ordinarily prudent
man bestows upon his important business (Gaylord vs. Berry, 169 N. C.
733, 86 S. E. 623). None of these mentioned circumstances obtains in the case at
bar. Here it appears that appellant himself as well as his counsel were duly
notified, and had full knowledge that the case was to be heard on the date it
was actually tried. Counsel was, in fact, present thereat and conducted the
hearing thereof, resting the ease after cross-examining appellee as witness and
scrutinizing the evidence presented by the latter and, thereafter, presenting
evidence in support of appellant’s defense. Considering that the client is bound
by his counsel’s conduct and handling of his case during the trial, appellant
cannot now seriously contend that he was not notified that the case was already
submitted for decision. Neither is appellant’s failure to inquire from his
counsel regarding the status of the ease, an excusable negligence as to justify
rehearing or retrial. As far as the trial court is concerned, appellant was
already duly notified, through his counsel, of the entire proceedings in the
case. If he failed to inquire from his counsel as to said status, appellant
alone was to blame. As a client he should have been in contact with his counsel
from time to time, in order that he may be informed of the progress of his case,
thereby exercising that standard of care “which an ordinarily prudent man
bestows upon his important business” (Gaylord vs. Berry,
supra.).

Furthermore, it appears that appellant’s petition to set aside the judgment
and reopen the case, is grounded on his alleged excusable negligence in failing
to appear and testify during the hearing of the case on February 3, 1959,
namely, his becoming ill with flu (influenza) on said date. We find, however,
that appellant failed to accompany said petition with affidavits of merit
showing the excusable negligence relied upon, and the facts constituting his
good and substantial cause of action or defense, as expressly required under
Section 3, Rule 38 of the Rules of Court. We have repeatedly held that such a
defect is fatal (Abao vs. Virtucio, et al., 109 Phil., 821; Price
Stabilization Corporation vs. Court of First Instance of Manila, et al.,
97 Phil., 153, which warrants the denial of the relief sought (Abao vs.
Virtucio, et al., supra, citing Coombs vs. Santos, 24 Phil., 446;
McGrath vs. Del Rosario, 49 Phil., 330; Villanueva, et al. vs.
Alcoba, 101 Phil., 277. The reason for the rule is that it is the affidavits of
merit which serve as jurisdictional basis for a court to entertain a petition
for relief (Abao vs. Virtucio, et al., supra; Omandam vs.
Director of Lands, 95 Phil., 450; Off. Gaz., 4840. Stated differently, where a
petition to set aside a judgment or reopen a case pursuant to Rule 38 of the
Rules of Court is not accompanied with said affidavits of merit, the court with
which it is filed is not called upon to entertain the petition. Applied to the
instant case, appellant’s petition to set aside the judgment in question and
reopen the case acquired no standing in court and, consequently, it was rightly
denied.

With these conclusions, we find it unnecessary to discuss the other points
raised by the parties.

Wherefore, the order of the trial court dated May 19, 1959 denying
appellant’s petition to set aside the judgment of April 16, 1959 appealed from,
is hereby affirmed, with costs against the appellant. So
ordered.

Bengzon, C.J., Padilla, Labrador, Concepcion, Reyes, J.B.L.,
Paredes, and Dizon, JJ., concur.

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^[1] Upon petition of plaintiff himself, the
complaint was earlier dismissed as to the defendant Sheriff which automatically
carried the dismissal of the complaint as to the bonding company which furnished
the bond for the Sheriff.