TOMAS T. FABELLA, PETITIONER, VS. TIBURCIO TANCINCO ETC., ET AL., RESPONDENTS.

This is a petition for certiorari to annul two orders of the Court
of First Instance of Manila in Civil Case No. 3354, entitled Juan A.
Ramos et al. vs. Tomas T. Fabella.

It appears that on December 24, 1947, plaintiffs in said case
obtained a judgment against defendant for the sum of P4,050 plus legal
interest and costs. Defendant did not appeal, but on March 17, 1948, he
filed a petition to have the judgment set aside, and, in accordance
with section 5 of Rule 38, Rules of Court, and upon the filing of a
bond for P4,050, he had the court issue a preliminary injunction to
prevent the judgment from being executed.

The petition to set aside the judgment was granted. But in the new
trial that followed, defendant again lost. Not only that; plaintiffs
were allowed to recover more, for in the new judgment that was
rendered, defendant was ordered to pay them P12,400, plus interest, in
addition to the sum previously adjudged. Notified of this new judgment
on July 21, 1949, defendant filed his motion for reconsideration 33
days thereafter, but it was denied by the court on the ground that the
said judgment had already become final.

On August 30, 1949, the court, at the instance of plaintiffs,
ordered the issuance of a writ of execution, and on the 21st of the
following month, again at plaintiffs’ instance, ordered the above
mentioned bond confiscated, “to be applied,” so the order says, “in
partial satisfaction of the judgment rendered herein.” Reconsideration
of this last order having been denied by the court below, its annulment
is now sought in the present petition.

On October 4, 1949, defendant filed a petition to set aside the
order of August 30, denying reconsideration of the second decision for
the reason that the same had already become final, is ground for this
petition defendant alleged that the late filing of his motion for
reconsideration was due to mistake and excusable negligence, more
specifically as follows:

“1. That the said motion for reconsideration was
not filed on time, i. e., August 20, 1949, due to mistake and excusable
neglect on the part of the clerk of the undersigned counsel, which
consists in that said clerk, Miss Jovita Nierras, had been sick from
August 18, 1949 to August 22, 1949, and consequently she was absent and
did not come to the office of the undersigned, during the said period;
that inasmuch as the undersigned had been relying upon her said clerk
to remind him of the filing of pleadings, records, briefs, etc. as they
become due, and that said clerk had been absent during the said period,
and failed to notify the undersigned of the last day for the filing of
the said record on appeal, and the undersigned counsel not knowing of
the exact last day for the perfection of the appeal in this case, he
was not able to perfect the appeal in this case; that the truth of the
matter being said clerk had been preparing the record on appeal in this
case; that defendant had not had the intention to abandon his appeal in
this case; that the amount involved in the appeal is more than P16,400;
that it would be an injustice to the herein defendant to be deprived of
his right to appeal in this case; that the said defendant has been the
victim of persecution, criminal and civil, which has impoverished him;
that his case is meritorious and that the judge then presiding over
this Honorable Court, the Hon. Buenaventura Ocampo had not fully
appreciated the evidence and the law in this case; that no violation of
any substantial right of the plaintiffs in this case could be incurred,
in view of the fact that said plaintiffs had already levied upon all
the properties of the herein defendant, including those which are by
law exempt from execution, thus totally depriving the herein defendant
of his only means of livelihood.”

This petition was also denied in an order rendered November 4, 1949. This is the second order whose annulment is herein sought.

Going back to the order for the confiscation of the bond, it should
be noted that the said bond is not one given under section 2 of Rule 39
to guarantee the performance of an appealed judgment, but one required
for the issuance of a writ of preliminary injunction to stay the
execution of a judgment which is sought to be set aside on the ground
of fraud, accident, mistake or excusable negligence. Such a bond is
specifically authorized by Section 5 of Rule 33, and its condition is
that if the petition to reopen is dismissed or petitioner fails on the
trial of the case upon its merits, the petitioner “will pay the adverse
party all damages and costs that may be awarded to him by reason of the
issuance of such injunction, or the other proceedings following the
petition.” Such a bond “will not answer for the amount of the judgment
sought to be set aside.” (I Moran, Rules of Court, 636).

As directed by Section 9 of Rule 60, the damages recoverable on a
bond of this kind “shall be claimed, ascertained and awarded under the
same procedure as prescribed in section 20 of Rule 59,” which, in so
much as is pertinent to this case, provides:

“* * * . Such damages may be awarded only upon
application and after proper hearing, and shall be included in the
final judgment. The application must be filed before the trial or, in
the discretion of the court, before entry of the final judgment, with
due notice to the plaintiff and his surety or sureties, setting forth
the facts showing his right to damages and the amount thereof. * * *.”

This provision clearly contemplates that before damages could be
recovered on the bond here under consideration, there must first be an
application with due notice to the other party and his sureties setting
forth the facts showing applicant’s right to damages and the amount of
thereof. To this application, the other party may interpose his
pleading, and upon the issue thus being joined, the matter will be
tried and determined. But the respondent Judge appears to have
completely disregarded this procedure and, without hearing on the
amount of damages and without even notice to the surety, declared the
bond confiscated and ordered it applied to the satisfaction of the
Judgment, merely on the gratuitous assumption that the plaintiffs had
suffered damages in the amount of the bond. The order is illegal and
should therefore be revoked.

As to the other order herein complained of, it should be
recollected that defendant’s motion for a reconsideration of the second
judgment was filed after the said judgment had already become final. It
was, therefore, properly denied. It may be added that the motion was
merely pro forma. But 35 days after the denial of the motion,
defendant sought reconsideration of the order of denial, alleging as a
ground that the tardiness in the filing of the first motion was due to
“mistake and excusable neglect” on the part of his clerk who, it was
alleged, had been absent from office on account of sickness, and
invoking the precedent established by this Court in Coombs vs.
Santos, 24 Phil. 446, and in Siguenza vs. Mun. of Hinigaran, 14 Phil.
495. It may well be disputed whether an attorney could be excused for
the negligence of his clerk where there is no showing that he himself
has shown diligence or has done anything to guard against such
negligence. But assuming that a case of that kind is covered by the
precedent laid down in the cases cited, it may not be amiss to point
out that the defendants in those cases had not had their day in court,
for judgment was obtained against them by default, and this
consideration must have weighed heavily in the mind of the Court. Sudi
is not the situation here. The judgment which petitioner seeks to set
aside is one that has been rendered after regular trial, and the first
motion for reconsideration does not contain any prima facie showing
that the judgment was wrong. Indeed, said motion for reconsideration
was merely pro forma based on the bare statement that the decision was
contrary to law and was not supported by the evidence. And nothing was
said at that time why the motion was filed out of time.

A petition for reconsideration on the ground of excusable
negligence is addressed to the sound discretion of the court. This
discretion can not be interfered with except in a clear case of abuse.
Taking into account all the circumstances of the case, we are not
prepared to say that the respondent judge did not make a good use of
its discretion in refusing to set aside his order denying
reconsideration of the judgment on the ground that this had already
become final.

Wherefore, the order of September 21, 1949, for the confiscation of
the bond is hereby revoked; but the order of November 4, 1949, denying
the motion to set aside the order of August 30, which in turn denies
reconsideration of the judgment, is affirmed. Without pronouncement as
to the costs.

Ozaeta, Pablo, Bengzon, Tuason, and Montemayor, JJ., concur.