G.R. No. 19539. February 20, 1923

For the proper understanding of this case, it should be borne in mind that
the Court of First Instance of Surigao, on June 30, 1922, rendered a decision in
an action for the recovery of a certain sum of money, absolving the defendant
from the complaint. The appellant was duly notified of said judgment on July
12th, and thereupon filed a motion for new trial dated in Manila on the 12th,
and received in Surigao on the 22d, of the said month of July. Said motion for
new trial reads as follows:

“The undersigned plaintiff being dissatisfied with the decision of the court
rendered in this case, of which he was notified in Manila on June 12, 1922,
hereby moves for a new trial on the following ground:

“That the evidence does not justify the decision of the court, and the said
decision is contrary to the facts and the law.

“Manila, for Surigao, July 14, 1922.

	(Sgd.) “FRANCISCO SORIANO
		“Plaintiff

“Copy of this motion was on the same day sent by me by mail to Mr. Montano
Ortiz, attorney for defendant.

	(Sgd.) “FRANCISCO SORIANO
		“Plaintiff.”

This motion having been denied by the court on July 26th, the appellant took
due and timely exception to such ruling, and announced his intention to perfect
a bill of exceptions, which he did on July 31st, the bill of exceptions
presented by him having been approved by the court on the 19th of following
August.

On September 2, 1922, the docket fee was paid, and the necessary amount of
money for the printing of the bill of exceptions deposited with the clerk’s
office. The bill of exceptions was printed on September 9th, and appellant and
appellee received the required number of copies thereof on October 2d and 11th,
respectively.

The defendant-appellee received the required number of copies of appellant’s
brief on October 25th, and, on November 14th, filed a motion for an extension of
15 days within which to file his brief. Said extension was to expire on December
9th of the same year. On December 11th a motion dated December 3d was filed in
this court asking for the dismissal of the appeal. The court, by a resolution
dated December 22, granted the motion ex parte, dismissing the appeal
interposed by the plaintiff. On January 2, 1923, the plaintiff filed a motion
for the reconsideration of the preceding resolution, and this is the motion now
before us.

It should be noted that no question was raised by the appellee in the Court
of First Instance as to the alleged irregularity in the filing of the motion for
new trial; nor was any objection made by him to the approval of the bill of
exceptions; nor was the motion for the dismissal of the appeal filed in this
court until after he had received the copies of the bill of exceptions and of
appellant’s brief, and after the expiration of the extension applied for by him
for the filing of his brief.

Under these circumstances, after hearing the arguments made by both parties,
the doctrine laid down by this court, among other cases, in that of Vergara
vs. Laciapag (28 Phil., 439, 442), may be applied, wherein, the court
said:

“We have frequently decided that no objection to the procedure in the lower
court will be considered here unless an objection or exception was made or taken
in the lower court. The only exception to this rule is one where the
jurisdiction of the lower court is involved. The defendant-appellant not having
laid a foundation for his first assignment of error it cannot be considered
here. (Andrews vs. Morente, 9 Phil., 634; Guerrero vs. Singson, 19
Phil., 122.)”

It cannot be argued that as, in the motion for new trial now in question, the
date and place of its hearing were not stated, the trial court had no
jurisdiction to entertain said motion, for the case was under its control and it
could pass upon it, as is expressly provided in section 146 of the Code of Civil
Procedure.

Under article 9 of the Rules of the Courts of First Instance, when no other
provision is made by law, no action shall be taken on any motions or
applications unless it appears that the adverse party had notice thereof three
days before the time set for the hearing thereof.

Article 10 provides the manner in which notices of motions should be given,
and says:

“All notices of motions shall be in writing, and shall state generally the
nature and grounds of the motion and when and where it will be heard. They shall
be accompanied with copies of the affidavits and other papers on which the
motion is based. No demurrer or motion shall be accepted for filing without
proof of notice thereof having been given the adverse party, at least three days
in advance, that same will be submitted on the next motion day or on a date
specifically designated by the court.”

Could the lower court validly pass upon said motion, as it did,
notwithstanding that the notice given the appellee by the appellant did not
state the date and place of hearing? An answer in the negative would be
inevitable if the general provisions alone of these two articles of the Rules
are considered, but article 9 contains an exception which is a recognition of
the principle that the provisions of the statute must prevail over those of the
Rules. Under said article 9, no action shall be taken upon any motion if the
formalities required by the Rules have not been complied with, unless the law
provides otherwise.

And section 146 of the Code of Civil Procedure expressly provides:

“The application shall be made by motion in writing, stating the ground
therefor, of which the adverse party shall have such reasonable notice as the
judge may direct. When the application is made for a cause mentioned in the
first or second subdivisions of the last section (referring to accident,
surprise which could not have been guarded against, or newly discovered
evidence) it must be made upon affidavits, and counter affidavits from the
adverse party may likewise be received.

“The overruling or granting of a motion for a new trial shall not be a ground
of exception, but shall be deemed to have been an act of discretion on the part
of the judge, within the meaning of the second sentence of section one hundred
and forty-one. If, however, the motion for a new trial was made on the ground
that the evidence was insufficient to justify the decision, an exception may be
taken to the order overruling such motion, and such exception may be reviewed by
the Supreme Court as in other cases.”

A comparison of the language of section 146 of the Code of Civil Procedure
with the phraseology of articles 9 and 10 of the Rules in regard to serving
notice of motion on the adverse party, will show that while the Rules make it
the duty of the party filing the motion to give the adverse party a three days’
previous notice, stating the date and place of the hearing of the motion, the
Code of Civil Procedure leaves it to the discretion of the judge to order the
notification to the adverse party of a motion like that under discussion.

What the Code requires of the movant is that the motion for new trial be made
in writing, stating the grounds therefor. And if the motion is on the ground of
accident, or surprise which could not have been guarded against, or newly
discovered evidence, it must be proved by affidavits.

The appellant made his motion in writing and on the ground that the evidence
did not justify the judgment, and gave notice thereof to the adverse party,
although without stating the date and place of hearing. The appellant has
complied with the requirement of the law. It became a matter of discretion on
the part of the judge to order the giving of notice of the hearing of the motion
to the adverse party, if he deemed it fit. But the judge denied the motion, and
considered it unnecessary to give any notice. Such an action of the trial court
is, in our opinion, in accordance with the provision of article 146 above
quoted. Indeed, if the motion was to be denied, we do not see the necessity of
giving any notice of the hearing of the same, there being no right of the
appellee to be prejudiced by the denial of said motion. If the trial court were
disposed to grant the motion for new trial, then it would have been necessary to
notify the adverse party and to hear whatever objection he might have to the
granting of new trial.

In reaching this conclusion, we are not unmindful of the decision rendered by
this court in the case of Manakil and Tison vs. Revilla and Tuaño (42
Phil., 81), dismissing the complaint in an application for mandamus to
compel the Court of First Instance of Pampanga to pass upon a motion for new
trial similar to the one now in question.

In that case a motion for new trial was filed five days after the notice of
the judgment; that is, on the 12th of April, 1921. The movants gave notice to
the adverse party, but without designating the date and place of the hearing of
said motion, which was submitted to the trial court without argument. No action
was taken by the trial court on this motion, nor did the movants urge that court
to act within the legal period. Forty days after the notice of the judgment,
that is, on the 23d of May, 1921, the movants asked that that motion be taken up
for decision, and that to that end a date and place of hearing be designated;
whereupon the court below denied the motion on the ground that it had been filed
outside of the legal period of thirty days and after the judgment had become
final.

This is what gave rise to the petition for mandamus, in which the
respondent demurred to the complaint on the ground that the application was
improper and that the facts therein alleged did not constitute a cause of
action. The question at issue in that case was whether or not mandamus
lay to compel the judge to admit a motion for new trial based on the
insufficiency of evidence, filed thirty days after notice of judgment; and this
was the question decided by this court in the negative when it sustained the
demurrer to the complaint.

The fact of the motion lacking the formalities required by the Rules, as it
was filed on the 12th of April, 1921, was not necessarily involved in the case
of mandamus, since the petitioners had consented to the court passing
upon the motion as of the 23d of May, whereby his contention was reduced to the
proposition that mandamus should issue to compel the lower court to admit
the motion for new trial on the ground of insufficiency of evidence even though
it was filed after the lapse of the legal period.

In the case of the Roman Catholic Bishop of Lipa vs. Municipality of
Unisan, p. 866, post, the appellant assigned as one of the errors
committed by the trial court, its failure to consider and pass upon the motion,
for new trial filed by the said appellant. In that case the trial court rendered
judgment on April 19, 1917, dismissing the plaintiff’s complaint. On the 21st of
the same month the plaintiff filed a motion in writing, taking exception to the
judgment and asking, at the same time, for the reopening of the case and the
holding of a new trial on the ground that the evidence did not justify the
decision and that the judgment was contrary to law. On the same day, April 21,
1917, he sent a copy of his motion to the defendant, but without having seated
therein the date and place of its hearing. The trial court took no action on
said motion. And on March 2, 1918, that is, more than ten months thereafter, the
attorneys for the plaintiff notified the defendant in writing that on the 9th
instant they would move the court to hear and determine the motion for new trial
of April 21, 1917. Hearing having been held on the date fixed for the purpose,
the trial court, by an order dated the 14th day of the said month of March,
denied the petition to consider and decide the motion for new trial filed April
21, 1917.

Under these circumstances it is evident that the plaintiff having failed to
urge the hearing of his motion within the legal period, he could not lawfully
ask that same be taken up for decision ten months after the notice of judgment.
And this is the reason why the assignment of error made by the appellant was
held by this court not to be well founded.

We believe that the doctrines laid down in the aforesaid two cases on the
specific questions submitted to the court for decision do not apply to the
instant case, in which a motion for new trial was filed within the legal period,
notice of the same having been given to the adverse party, though without
designating the date and place of hearing, the court having passed upon the
motion by denying it.

In view of the foregoing, we find that in the instant case the trial court
had jurisdiction to pass upon the motion of the appellant under section 146 of
the Code of Civil Procedure; wherefore the resolution of December 29, 1922,
should be set aside, the cause reinstated and the appellee granted the first
extension of fifteen days applied for within which to file his brief, the said
period to be computed from the date of notice of this decision. So
ordered.

Araullo, C.J., Street, Malcolm, Ostrand, Johns, and
Romualdez, JJ., concur.
Avanceña, J., concurs in the
result.