PABLO RICOHERMOSO, PETITIONER, VS. JUAN P. ENRIQUEZ AND BERNARDINO RICOHERMOSO, RESPONDENTS.

In an action for forcible entry instituted in the justice of
the peace court of Santa Cruz, Marinduque by the herein respondent Bernardino
Ricohermoso against the herein petitioner Pablo Ricohermoso, judgment was
rendered in favor of the former. The petitioner appealed to the Court of First
Instance of Marinduque which set the trial of the case for July 15, 1947. This
trial was postponed upon motion of the petitioner who did not even bother about
appearing before the court, on the ground of sickness of one of his witnesses.
Trial was reset for July 16,1948, on which date attorney for the petitioner
filed a motion praying that the case be transferred to July 20, 1948, for
failure of the petitioner and his witnesses to show up. In an order dated July
21, 1948, the respondent judge denied the motion for lack of merit and dismissed
petitioner’s appeal without costs. The petitioner has filed the present special
civil action for certiorari aimed at setting aside said order.

The contention that the respondent judge gravely abused his
discretion is untenable. In the first place, the motion for postponement was not
accompanied by affidavits of merit as required by section 5 of Rule 31 of the
Rules of Court. In the second place, the action is one of forcible entry filed
in and decided by the justice of the peace court in 1946, and set for trial by
the Court of First Instance first on July 15, 1947, and again on July 16, 1948,
or one year apart. Considering the summary nature of the action, it cannot be
said that the petitioner has not been given enough time to be in readiness for
trial.

While the respondent judge properly denied the postponement, he
committed an error in dismissing the appeal. Under section 9, of Rule of Court
No. 40, “a perfected appeal shall operate to vacate the judgment of the justice
of the peace or the municipal court, and the action when duly entered in the
Court of First Instance shall stand for trial de novo upon its merits
in accordance with the regular procedure in that court, as though the same had
never been tried before and had been originally there commenced,” except of
course in forcible entry and detainer cases when, upon failure of the defendant
to comply with the conditions for staying execution, the Court of First Instance
orders the execution of the appealed judgment which does, not, however, bar the
appeal from taking its course. The respondent judge was accordingly bound to
proceed with the trial and decision of the case after he had denied petitioner’s
motion for postponement.

Wherefore, the order of the respondent judge dismissing
petitioner’s appeal is set aside and the case is restored for further
proceedings. So ordered without costs.

Moran, C.J., Ozaeta, Bengzon, Padilla, Tuason, Montemayor,
Reyes, and Torres, JJ., concur.