FRANCISCO SANCHEZ, PETITIONER, VS. PEDRO SERRANO AND SOTERO RODAS, JUDGE OF COURT OF FIRST INSTANCE OF MANILA, RESPONDENTS.

Civil case No. 1709 of the Court of First Instance of Manila
was set for trial on November 5, 1947, but on October 31 attorney for defendant,
petitioner herein, asked for postponement and without awaiting for the
resolution fo the court therein he left for Mindoro to campaign for his
candidacy. The court postponed the trial to November 13, but notice thereof was
not received by defendant’s attorney who left no clerk in his law office and
limited himself to asking an employee of a physician to make visits to that
office. Trial was held on November 13, and a decision was rendered against
defendant which he received on Jaunary 14, 1948. On January 23, 1948, he filed a
motion to set aside the decision, under rule 38, but the motion was denied. On
March 16, 1948, petitioner filed another motion to the same effect which was
also denied. In the order of denial execution of the judgment was ordered.
Petitioner filed his notice of appeal and appeal bond an ta the same time filed
a motion to suspend the execution of the judgment during the pendency of the
appeal, but the motion was denied. Hence, the present petition for certiorari
wherein it is prayed that the judgment rendered, and its execution issued, by
the respondent judge, as well as his order denying the motion for relief filed
under Rule 38, be set aside because of a grave abuse of discretion therein
committed.

Without considering the merits or demerits of the motion to set
aside filed under Rule 38, we believe the present petition is improper, the
remedy being an appeal which has already been interposed. As to the suspension
of the execution of the judgment, the remedy si provided in section 5, of said
rule. In other words, when the petition for relief under Rule 38 was filed,
motion for suspension of the execution of judgment could have been presented
then or hereafter under section 5, of said rule, by offering the bond therein
provided and if denied it may be renewed on appeal. Such suspension cannot
properly be examined in certiorari proceedings separately from the motion to set
aside which shall be reviewed on appeal, for it depends in great apart form the
circumstances constituting the background of the principal relief to be
considered on appeal. Under the circumstances disclosed in the record before us,
it is not clear the the refusal to suspend execution is a grave abuse of
discretion, it being apparent that petitioner’s failure to receive notice of the
trial held on November 13 was due to his negligence in leaving Manila without
awaiting for the resolution fo the court on his motion for continuance, and also
to his failure to provide his law office with some responsible clerk to receive
notices, and his first motion for relief was filed only on January 22, 1948.

Ozaeta, Paras, Feria, Pablo, Perfecto, Bengzon, Tuason,
Montemayor, and Reyes, JJ., concur.