ENRIQUE B. DOMINGO, ET AL., PLAINTIFFS, ENRIQUE B. DOMINGO, PLAINTIFF-APPELLANT, VS. MAXIMO DE LA CRUZ, ET AL., DEFENDANTS-APPELLEES.

Enrique B. Domingo, one of the plaintiffs in Civil Case No.
Q-7270 of the Court of First Instance of Rizal,
appeals from the order of that court deny­ing his petition for relief of
judgment therein.

The antecedents are recited in the judgment from which relief is
sought, as follows:

“Plaintiffs, legitimate children and descendants of the late Eustaquio Beltran by first marriage to the late Severina Dizon, sue defendants,
collateral heirs of the late Pelagia de la Cruz, se­cond
wife of Eustaquio Beltran, for the partition of real
proper­ties and bank deposits which plaintiffs are claiming to be conjugal
assets of the deceased spouses Eustaquio Beltran and Pelagia de la Cruz. 
It is alleged in the amended complaint that Eustaquio
Beltran brought into his marriage with Pelagia de la
Cruz an untitled, income producing, ten-hectare rice lands, situated in Bago-bantay Quezon, City; that
from the income of said rice lands, the couple were able to purchase on
installment Lot No. 335 of the Piedad Estate x x x and Lot No. 293-B x x x x x; that on January, 1958, Pelagia
de la Cruz sold Lot No. 335 of the Piedad Estate to
the Peoples Homesite and Housing Corporation for
P125,576.75, part of which were used in buying pro­perties and the balance
deposited in the banks.  Plaintiffs also
seek to partition a parcel of land allegedly in possession of defendant Maximo de la Cruz, but the same can not be considered as
involved in this case because neither the plaintiffs nor the court can
determine its exact identity.

“In their answer, defendants claimed that the ten hectares
rice lands which plaintiffs alleged to have been brought by Eustaquio
Beltran into his marriage with Pelagia de la Cruz
never belonged to Eustaquio Beltran nor to any of the
plaintiffs; that Lot No. 293-B of the Piedad Estate
was acquired by the late Pelagia de la Cruz with her
own money long after the death of her second husband Eustaquio
Beltran; and that Lot 335 of the Piedad Estate was
formerly a Friar Land owned and disposable by the Government of the Philippines,
through the Director of Lands, pursuant to Act No. 1120; that the late Pelagia de la Cruz contracted to buy on installment said
lot from the Government in or about the year 1912, the first few installment
were paid by Eustaquio Beltran and the remaining
installments were settled by Pelagia de la Cruz; and
that after the installments were paid, the Government caused a transfer
certificate of title issued to Pelagia de la Cruz as
sole and exclusive owner thereof.

“On October 25, 1963, defendants filed a request for admission
re­questing plaintiffs to admit or deny that the 10 hectares rice lands
referred to in the complaint, and from which income Lot Nos. 335 and 293-B of
the Piedad Estate were allegedly purchased, were
originally registered in the names of Mariano Severo Tuason y de la Paz, Teresa Eriberto
Tuason y de la Paz, Augusto
Numberto Tuazon y de la
Paz, and Angel Ordoñez y de la Paz as appearing under
Original Certificate of Title No. 736 of the Office of the Register of Deeds of
Rizal; that in or about the year 1934, the Tuason family recovered possession of said lot through
execution of a court decision declaring the Tuason
family as the true owners thereof and nei­ther Eustaquio
Beltran, nor the plaintiffs have a right to the pos­session of the land.  Plaintiffs answer to said request for
admission, denying the matters of which defend­ants have requested an
admission, was not made under oath. 
Under the pro­visions of Section 2 of Rule 26 of the new Rules of Court,
each of the matters treated in a request for admission not specifically denied
under oath by the party to whom the request is directed shall be deemed
admitted.

“Contending that there is no genuine issue as to any material
fact of the case, defendants move, with supporting
affidavit and public documents sustaining the allegations of their answer to
plaintiffs’ amended complaint, for a summary judgment.  Plain­tiffs did not serve opposing affidavits
in accordance with Section 3, Rule 34 of the new Rules of Court, which failure negate their claim for the existence of a genuine or
debatable issue of facts.”

On June 8, 1964,
the lower court rendered summary judgment in favor of the defendants and
against the plaintiffs by dismissing the case.

Under date of October 23, 1964, the plaintiffs filed petition for
relief claiming that the decision was rendered by the court a quo
due to fraud committed by the defendants in connivance with one of the plain­tiffs,
Victoriano Beltran, the commission of which is being
shown in the affidavit attached to the petition; and that plaintiffs have a
good and substantial cause of action against defendants.

On November 12, 1964, the defendants opposed the petition for
relief on the grounds that:  (1) the peti­tion
is not authorized by Sections 2 and 3 of Rule 38, in that it was filed beyond
the sixty-day period; that it recites no extrinsic fraud in the procurement of
the judgment in the case; that neither the petition for relief nor the
affidavit in support thereof state facts constituting petitioner’s good and substantial
cause of action; and (2) that the appearance of Atty. Arsenio
Gumahad is unauthorized.

On December 11, 1964,
the petition was denied on the ground of late filing, “it appearing that
it was filed only on October 23, 1964,
125 days after plaintiffs learned of the judgment complained of on June 20, 1964.” Motion for
reconsideration of this denial has likewise failed.

Only one of the plaintiffs has appealed, and the question raised
in his appeal is whether or not the petition for relief was filed properly.

Section 3, Rule 38 of the Rules of Court, which governs the
issue, reads:

“Time for filing petition; Contents and
verification.  – A petition
provided for in either of the preceding sections of this rule must be verified,
filed within sixty (60) days after the petitioner learns of the judgment,
order, or other proceeding to be set aside, and not more than six (6) months
after such judgment or order was entered, or such proceeding was taken; and
must be accompanied with affidavits show­ing the fraud, accident, mistake, or
excusable negligence relied upon, and the facts constituting the pe­titioner’s
good and substantial cause of action or defense, as the case may be.”

It appears here that the court rendered judgment on June 8, 1964.  Plaintiffs were served with copy thereof on June 20, 1964.  And, only on October 23, 1964, the plaintiffs filed the petition for
relief.  So, in the order of the court,
dated December 11, 1964,
it correctly said:

“Considering that the petition for relief from judgment
presented by plaintiffs, thru counsel, has been filed beyond the period allowed
by law, it appearing it was filed only on October 23, 1964, 125 days after
plaintiffs learned of the judg­ment complained of on June 20, 1964, said
petition is hereby denied.”

In appellant’s brief, mention is made about a mo­tion for
reconsideration filed by the plaintiff-appellant on July 20, 1964. 
It is claimed that the sixty-day period to file the petition for relief
should be counted from the denial of the said motion for reconsi­deration.  The argument, however, is untenable because
it is based upon a mere allegation which is not support­ed by evidence, for
nowhere in the record on appeal does it show that such a motion had been
filed.  The order of the court itself
refutes the contention.

Some word about the affidavit submitted by the plaintiffs in
support of their allegation of fraud committed by the defendants on account of
which they were able to procure judgment in their favor.  In substance, all that was stated in that
affidavit was that, origi­nally, Atty. Arsenio Gumahad was employed to represent all the plaintiffs in the
controversy; that on February 25, 1964, Victoriano
Beltran discharged Atty. Gumahad and hired one Atty. Ubarra to take his place; that Atty. Ubarra
failed to submit, as required by the court, a memorandum on the question of
whether the Friar Lands Law should be applied in the case and not the Civil
Code; and that Atty. Ubarra merely requested for
extensions of time to file the same.

The fraud claimed to have been committed here allegedly consists
in the fact that Victoriano Beltran, in dismissing
Atty. Gumahad as counsel for plaintiffs,
misrepresented himself to be one of the plaintiffs while in reality he is only
a son of one of them; that Atty. Ubarra was not in a
position to prosecute plaintiffs’ rights and interests because he belonged to
the same law office that handled the estate and inheritance tax case of the
late Pelagia de la Cruz whose properties are being
litigated.

The mere failure of Atty. Ubarra to file
a memoran­dum in behalf of plaintiffs is no reason for us to con­clude that
there was connivance between him and the de­fendants.  For it seems that the other plaintiffs them­selves
did not even feel to have been cheated or de­frauded by Ubarra’s
replacement of their first lawyer, otherwise, they should have joined the
herein plaintiff-appellant in this appeal. 
What appears evident is that there has been an intramural
misunderstanding among the plaintiffs as to who should be their lawyer.  According to defendants, in their opposition
to relief from judgment filed in the lower court, after the summary judgment,
both Attys. Gumahad and Ubarra
filed separate motions for reconsideration thereof, without any alle­gations,
however, as to fraud.  After denial of
these motions, no appeal was interposed by either.  Atty. Gumahad, who
is again representing the plaintiff-appellant here, has himself waived the
defense of fraud for not having raised it in his motion for reconsideration.

At any rate, We believe that a memorandum
from Atty. Ubarra in behalf of the plaintiffs,
discussing the appli­cability of the Friar Lands Law to the controversy, would
not have altered the result.  As the
quoted portion of the decision shows the reason for its summary nature was
plaintiffs’ failure to specifically deny each of the matters treated in
defendants’ request for admission,^[1]
and also their failure to serve opposing affidavits to defendants’ motion for
summary judgment, which failure negated their claim for the existence of a
genuine or debatable issue of facts.^[2]

Upon the foregoing considerations, there is no
justification for Us to overrule the conclusion
reached by the court below.  The order
appealed from is hereby affirmed, with costs against the plaintiff-appellant.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, and
Fernando, JJ., concur.

^[1]
See Section 2, Rule 26.

^[2]
Sec. 3, Rule 34.