J. M. TUASON & CO., INC., ETC., PLAINTIFF AND APPELLEE, VS. BIENVENIDO DE LEON, DEFENDANT AND APPELLANT. J. M. TUASON & CO. INC., REPRESENTED IN THIS INSTANCE BY GREGORIO ARANET…

Appeal by writ of error from two orders denying similar petitions to set
aside analogous judgments in the above entitled cases, upon the ground of
mistake and excusable negligence.

On August 3, 1959, separate judgments were rendered in Civil Cases No. Q-3600
and Q-3611 of the Court of First Instance of Rizal (L-16668 and L-16669 of this
Court) ordering the respective defendants therein, and all other persons
claiming under each, to vacate two (2) lots of about 200 square meters each,
situated in the barrio of North Tatalon, Quezon City, forming part of a bigger
parcel of land known as Sta. Mesa Heights Subdivision and covered by Transfer
Certificate of Title No. 1267, which, in turn, originated from Original
Certificate of Title No. 735, issued in 1914, both in the name of plaintiff J.
M. Tuason & Co., Inc., and to remove the house and other constructions on
said lots, and sentencing the defendants in each case to pay the plaintiff P60 a
month from the date on which said defendants had been found to have usurped the
possession of said lots until such time as plaintiff shall have been restored in
such possession, and the costs. Almost three months later, or on October 28,
1959, said defendants filed separate petitions to set aside the aforementioned
judgments, upon the ground that their failure to be present at the hearing of
their respective cases on July 31, 1959, was due to mistake and excusable
negligence, and that they had a good and valid defense, as set forth in the
affidavits attached to said petitions. Upon denial thereof, both defendants
interposed the present appeal.

Inasmuch as the two cases are identical, except as to the caption, title and
number thereof, as well as the name of the defendants and the particular lot
involved in each, plaintiff was allowed to file only one brief in reply to the
separate briefs of said defendants. For the same reason, both cases will be
jointly disposed of in this decision.

Appellants maintain that the lower court had abused its discretion in issuing
the order appealed from, but we find no merit in such pretense. As stated in
said order, defendants’ motion for postponement of the hearing, scheduled to
take place on July 31, 1959, was filed on that same date. Likewise, the motion
for postponement—which has not been included in the records on appeal—was based
upon the allegation that Jeremias Meris, one of the attorneys for the
defendants, had become voiceless due, presumably, to a severe cold and the
strain in his voice during a preliminary investigation the previous day. Yet no
medical certificate was attached to said motion.

“The fact of illness must be established by some satisfactory sworn
statement, either in the shape of an affidavit or the certificate of a
physician that satisfies the court of the inability of the party to be
present.” (Natividad vs. Marquez, 38 Phil., 608)

What is more, copy of said motion was not served on the plaintiff. Again, the
records show that defendants-appellants were, and still are represented by two
sets of lawyers, namely, Attorney Jeremias Meris and the law firm Asuncion,
Bulos, Revilla & Associates. The alleged indisposition of Atty. Meris could
not have prevented, at least, a member of said law firm, from appearing on
behalf of said defendants.

Lastly, defendants’ defenses were, allegedly, (1) adverse possession for over
50 years, (2) nullity of plaintiff’s title, upon the ground that the same had
been obtained by fraud and, (3) that the lots in question were not embraced in
said title. Considering, however, that the latter was derived from an original
certificate of title issued in 1914, it is obvious that the first two defenses
are absolutely untenable. Moreover, defendants’ affidavits are clearly
insufficient to establish prima facie that their third defense is
meritorious, apart from the fact that the evidence introduced at the hearing of
these cases disproved it.

Wherefore, the orders appealed from are hereby affirmed, with costs against
defendants-appellants. It is so ordered.

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