CLARO J. GIL AND (MRS.) CLARO J. GIL, PETITIONERS, VS. F. IMPERIAL REYES, JUDGE OF THE COURT OF FIRST INSTANCE OF ILOILO, CONSTANTINO Z. CANTO, PROVINCIAL SHERIFF OF ILOILO, REG…

In civil case No. 928 of the Court of First Instance of Iloilo,
for annulment of contract, the herein petitioners are the plaintiffs and the
herein respondents Regoberto A. Aguirre, Maria Jereos and Sofronio Flores, are
the defendants. Trial was set for July 2, 1948, notice of which was received on
June 22, 1948, by Atty. Gaudencio D. Demaisip, representing the petitioners.

On the date of trial, as neither Attorney Demaisip nor the
petitioners appeared, the court, upon motion of respondents, dismissed the
complaint and rendered judgment on the pleadings as to the counterclaim of
respondents. Copy of the judgment dated July 3, 1948, was received by Attorney
Demaisip on July 3, 1948. On July 24, 1948, the petitioners, through Atty.
Alfredo Zerrudo, filed a motion for reconsideration alleging that petitioners’
failure to appear at the trial was due to excusable negligence, in that their
former attorney, Gaudencio D. Demaisip, received notice of trial in Manila; that
thereupon Attorney Demaisip wrote the petitioners, advising the latter to secure
the services of another attorney; that petitioners received Attorney Demaisip’s
letter on July 3, 1948, or one day after the date fixed for the trial. Hearing
of the motion for reconsideration was set for August 7, 1948; but upon request
of Attorney Zerrudo, the court, in spite of strong opposition by attorneys for
respondents, postponed said hearing to November 5, 1948. After hearing, the
motion for reconsideration was denied in the order of the Court of First
Instance of Iloilo of November 5, 1948, notice of which was received by Attorney
Zerrudo on November 8, 1948. On December 14, 1948, a writ of execution was
issued and several properties of petitioners were levied upon by the provincial
sheriff of Iloilo who advertised the same for sale on February 10, 1949. No
steps were taken by the petitioners or their attorney until February 3, 1949,
when the present petition for certiorari and prohibition was filed in this Court
by the petitioners against the respondents seeking the annulment of decision of
the respondent judge of July 2, 1948, and the reopening of civil case No. 928. A
writ of preliminary injunction was issued by this court on February 10,
1949.

The respondent judge did not commit any abuse of discretion in
denying petitioners’ motion for reconsideration. The former attorney of
petitioners received notice nine days before the date of the trial. Although he
was in Manila, there was ample time for him to notify, by adequate means of
communication, the petitioners regarding any step to be taken in connection with
said trial. It is of common knowledge that, between Manila and Iloilo, there was
at the time telegraphic service, aside from regular mails by air and steamers.
At the least, it was to be expected that if the attorney of record was not sure
of contacting the petitioners on time, he should have filed a timely motion for
postponement. This was not done in the case at bar. At any rate, the new
attorney of petitioners, could have properly interposed an appeal from the
decision of July 2, 1948, and the order denying the motion for
reconsideration,—a remedy which, however, said attorney had filed to avail
himself of. Indeed, it may be remarked that there was rather too much negligence
or indifference on the part of petitioners and their counsel.

Wherefore, the petition will be as the same is hereby dismissed
and the writ of preliminary injunction heretofore issued is dissolved. So
ordered, with costs against the petitioners.

Moran, C.J., Bengzon, Montemayor, Reyes, and
Torres, JJ., concur.

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DISSENTING

OZAETA, J.:

I feel that miscarriage of justice was committed by the
respondent judge in refusing to reopen the case and to try it on the merits. As
a result the petitioners (plaintiffs below) not only lost or forfeited to the
respondents their land of 45,067 square meters.worth more than P1,200, for an
allegedly usurious loan of P360, but were also adjudged to pay to the defendants
by way of damages 40 cavans of palay a year from 1942 to the date of the
payment, or a total of not less than 280 cavans of palay, or its value at the
current price of that commodity. By the time the judgment is executed, the
damages so adjudged in favor of the defendants will aggregate about P4,000.

I hold that the judgment for damages, which was awarded without
proof but upon the sole allegation of defendants’ counterclaim, was rendered
without due process of law and therefore null and void. It is true that the
defendants alleged in their answer by,way of counterclaim that in view of the
refusal of the plaintiffs to deliver the possession of the land in question to
the defendants the latter suffered damages at the rate of 40 cavans of palay a
year. It is likewise true that the plaintiffs, answering said counterclaim,
merely set, up a general denial. But that did not authorize the trial court to
render judgment for damages without proof; for section 8 of Rule 10 provides
that “material averment in the complaint (in this case counterclaim), other
than those as to the amount of damage, shall be deemed admitted when not
specifically denied.”

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CONCURRING AND DISSENTING

TUASON, J.:

I agree with the majority decision in so far as it affirms the
dismissal of the complaint. I dissent in so far as it sanctions the award of
damages to the defendants based on the allegations in the counterclaim not
substantiated by proofs. Even in cases of default such judgment is not allowed:
the plaintiff is required to prove his allegations by competent evidence.

Padilla, J., I concur.