FRUCTUOSO ALQUESA, ET AL., PETITIONERS AND APPELLANTS, VS. BLAS G. CAVADA, JR., JUSTICE OF THE PEACE OF PINAMUÑGAHAN, CEBU, AND VENANCIO L. DAGALA, RESPONDENTS AND APPELLEES.

Appeal from an order of the Court of First Instance of Cebu, which
is before us only a question of law being raised by appellants herein.

On July 29, 1957, respondent Venancio L. Dagala filed with the
Justice of the Peace Court of Pinamungajan, Cebu, presided over by
respondent Bias G. Cavada, Jr., as Justice of the Peace, a complaint
for forcible entry (Civil Case No. 22-RP of said court) against
Fructuoso Alquesa and the nineteen (19) other persons who are
petitioners herein. Judgment was rendered in said Case No. 22-RP, on
August 24, 1957, against the twenty (20) defendants therein—petitioners
herein—who, on September 3, 1957, filed with said court a motion to set
aside the judgment for alleged lack of jurisdiction by reason of
“fraud, accident, mistake or excusable negligence”, because of which
the movants had, allegedly “been deprived unjustly” of their “day in
court” (according to the allegations of the petition in this case).
Soon later, or on September 10, 1957, said defendants (petitioners
herein) withdrew their motion to set aside the judgment, and sought an
extension of time within which to appeal therefrom, which was granted
by respondent justice of the peace. On the same date, said defendants
(petitioners herein) filed a notice of appeal and, after the perfection
thereof, respondent justice of the peace forwarded the record of said
Case No. 22-RP to the Court of First Instance of Cebu, where it was
docketed as Civil Case No. R-5254 thereof.

On October 7, 1957 said defendants (petitioners herein), with the
approval of the court of first instance, then presided over by Hon.
Jose Rodriguez, Judge, withdrew their aforementioned appeal, and the
next day, October 8, 1957, they filed, with the same court of first
instance and in the same Case No. R-5254, a petition to set aside the
judgment of respondent Justice of the Peace, relying upon the
provisions of Rule 38 of the Rules of Court. By an order, dated
November 10, 1957, this last petition to set aside was denied by the
aforementioned court of first instance, then presided over by Hon.
Edmundo S. Piccio, Judge, upon the ground that said Rule is
inapplicable to the case, the decision of the Justice of the Peace
Court being appealable and an appeal having been actually interposed
therefrom, although the appeal was subsequently withdrawn by the
aforementioned defendants (petitioners herein). Hence, this appeal by
the latter from said order of November 10, 1957, upon the theory that
the court of first instance should have set aside the decision of the
Justice of the Peace Court, for the same had not acquired jurisdiction
over some of petitioners herein, it being claimed that not all of them
had been summoned in the Justice of the Peace Court.

The record before us is not sufficient to permit a determination of
the truth of this allegation of fact. It is not necessary, however, to
pass upon this point, for the order appealed from was based upon a
procedural ground, namely, that the relief provided in Rule 38 of the
Rules of Court is not available to petitioners herein because the
judgment of the Justice of the Peace Court was appealable, and, in
fact, petitioners had appealed therefrom, although, for reasons not
stated in the record, they later withdrew the appeal. At any rate, a
petition for relief from judgment under said Rule must, pursuant to
section 3 thereof, 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, which he may prove if his petition be granted. In
the case at bar, the affidavit attached to the petition for relief
dated October 8, 1957, merely states the facts allegedly constituting
fraud, accident, mistake or excusable negligence. It says absolutely nothing about “the facts constituting petitioner’s good and substantial cause of action or defense”.

The case at bar is analogous to that of Fajardo vs. Bayona, 98
Phil., 695; 52 Off. Gaz., [4] 1937, in which, speaking thru Mr. Justice
Labrador, we held:

“* * * with these principles and provisions in mind
one can not fail to understand that in the case at bar the presentation
of the petition for relief under Rule 38, * * * should not be allowed
petitioner again because he already had the opportunity to prosecute or
compel the allowance of his appeal from the judgment * * *. This ruling
is supported by competent authority.

‘Except where such
remedies are cumulative under the governing statutes, a motion to
vacate or set aside a judgment will not be entertained when the proper
remedy of the party aggrieved if by appeal, error, or certiorari, * *
*.’ (49 CJ.S. p. 511.)

“The remedy first pursued! by
petitioner when he tried to have his appeal admitted was a remedy at
law. That which he subsequently pursued when he sought relief against
the judgment because of excusable negligence was a remedy in equity. It
has been held a vicious practice indeed for a party first to pursue a
legal remedy and later abandon it and prosecute that in equity
(Mellerio vs. Freeman, 211 Pa. 202, 60 Atl. 735). There will be no end
to litigation were parties allowed to avail of all remedies one after
another; As we said the remedy under Rule 38 is to be availed of only
in exceptional cases, and where there is other remedy at law, it should not be allowed to be used (Palomares vs. Jimenez, supra).

“But
there is another potent reason why the appeal must be denied and the
other appealed) from affirmed. Appellant Fajardo would not profit by
the allowance of his appeal, even if his appeal against the order were
allowed. His motion for relief is accompanied by an affidavit which
counsel gave the title of ‘affidavit of merit’. Upon examining this
affidavit, one will find that it is not the affidavit of merits that
Rule 38 requires. It is an affidavit supporting counsel’s
excusable negligence, not an affidavit that petitioner Fajardo has a
meritorious cause of action. As a matter of fact, neither his
petition in the court below nor his petition in this Court contains any
allegation or claim that he has a good or meritorious cause of action
against the respondent. Neither is his complaint attached to his
petition in the court below or in this Court. In Paner vs. Yatco, et
al., 87 Phil., 271; 48 Off. Gaz., 59, We held thru Mr. Justice
Montemayor:

* * * but when it is very evident as shown by the
facts of the case that the granting of the writ would not profit the
petitioner to obtain said remedy, for like a mirage it would merely
raise false hopes and in the end avail the petitioner nothing, said
petition for mandamus will be dismissed.'” (Italics supplied.)

This was a substantial reiteration of our view in Santos vs. Manila Electric Co., G. R. No. L-7735 (December 29, 1955).

Hence, the petition for relief in the case at bar is patently
untenable and the order appealed from should be, as it is herein,
affirmed, with costs against petitioners-appellants. It is so ordered.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B. L., Paredes, Dizon, and De Leon, JJ., concur.