FERMIN JALOVER, PETITIONER, VS. PORFERIO YTORIAGA, CONSOLACION LOPEZ AND HON. VENICIO ESCOLIN, IN HIS CAPACITY AS PRESIDING JUDGE, BRANCH V, COURT OF FIRST INSTANCE OF ILOILO, R…

 This is an original action
for certiorari, with prayer for a writ of preliminary injunction, asking
this Court to declare null and void the Orders dated August 24, 1972 and
November 10, 1972, issued by the respondent Judge in civil case No. 5429 of the
Court of First Instance of Iloilo, Branch V. 
On December 27, 1972, a temporary restraining order was issued by this
Court.

Sometime in April, 1960, private respondents Porferio Ytoriaga
and Consolacion Lopez filed against Ana Hedriana and petitioner Fermin Jalover
a complaint dated April 6, 1960, in the Court of First Instance of Iloilo (Civil Case No. 5429), alleging, inter alia, that
they are owners pro indiviso of Lot No. 2255 of the Cadastral
Survey of Jaro, covered by TCT No. 6738 and containing an area of 8,153 square
meters; that the said parcel of land is bounded on the southwest by the
Salog River; that as of January, 1958, by virtue of the effects of the current
of the river, there was a gradual increase of the land on its southwestern
portion of around 900 square meters; that since before the war, the plaintiffs
have been in continuous posses­sion of the increased portion of the land,
which, under the principle of alluvion, automatically belongs to them; that
sometime in January, 1958, the defendants had the land increase surveyed,
placed concrete monu­ments thereon and took possession thereof, without the
knowledge and consent of the plaintiffs; and that the defendants, who destroyed
plants standing on the land in question which belong to the plaintiffs, have
remained in possession of the land in spite of repeated demands made by the
latter for them to return the said possession. 
The plaintiffs prayed that they be declared the owners of the increased
portion of the land, and that the defendants be ordered to vacate the premises
and restore their possession to the plaintiffs, to pay the plaintiffs the sum
of P147.00 as actual damages, the sum of P300.00
as attorney’s fees, and the sum of P200.00 annually from the time the
plaintiffs were deprived of possession up to the time the said possession shall
have been restored, and to pay the costs of suit.

In his answer dated April 21, 1960, petitioner
Fermin Jalover, as a defendant, alleged, inter alia, that his
mother and co-defendant, Ana Hedriana, died on July 21, 1959; that the
land in question was formerly a river
bed, which, less than 10 years before, was abandoned through the natural change
in the course of the waters; that the said land rightfully belongs to the
defendant as sole heir of his mother, who owned the land pursuant to Article
461 of the Civil Code of the Philippines; that it is not true that the
plaintiffs were ever in possession of the land, or that they had made demands
upon the defendant to vacate the land; that the plaintiffs had filed an
ejectment suit against the defendant with the Municipal Court of Iloilo City on
March 12, 1958, and the same was decided against the plaintiffs; and that by
virtue of the malicious filing of the complaint, the defendant suffered damages
and had to hire the services of counsel. 
The defendant prayed the court to dismiss the complaint with costs
against the plaintiffs and to order the plaintiffs to pay the defendant the sum
of P1,000.00 as damages and the
sum of P300.00 by way of attorney’s fees.

Issues having been
joined, the case was set for trial.  On
September 4, 1963, private respondents, as plaintiffs, formally offered
documentary evidence, and upon the admission thereof, they rested their case;
whereupon, continuation of trial was ordered transferred until further
assignment.  Trial was postponed many
times stretching to a period of more than 6 years, until January 26, 1970, when
the case was called for trial, and then Presiding Judge Ramon Blanco dismissed
the case, for failure of private respondents to appear in court, in an order
which reads:

“The complaint was filed on April 6, 1960.  Up to the present the trial of the case has
not been finished.  The counsel of record
for the plaintiff is Atty. Amado Atol who since several years ago has been
appointed Chief of the Secret Service of the Iloilo City Police Depart­ment.  Plaintiff did not take the neces­sary steps
to engage the service of another lawyer in lieu of Atty. Atol.

“WHEREFORE, for failure to prosecute this case is dismissed
without pronouncement as to costs.”

Two years later, or on
January 17, 1972, private respondents’ lawyer, Atty. Amado B. Atol, filed a motion for reconsideration of the order dated January 26, 1970
dismissing the case, alleging that the said respondents did not fail to
prosecute because, during the times that the case was set for hearing, at least one of said respondents was always present, and the record would
show that the transfers of hearing were all made at the instance of petitioner
or his counsel; and, moreover, private respondents had already finished
presenting their evidence.  Petitioner
opposed the motion on the ground that the order of dismissal issued two years
before was an adjudication on the merits and had long become final.  On June 23, 1972, respondent Judge Venicio
Escolin, who succeeded Judge Blanco in Branch V, issued an order denying the
motion for recon­sideration on the ground that the order of dismissal had
become final long ago and was beyond the court’s power to amend or change.

Private respondents then
filed a Petition for Relief from Judgment dated July 10, 1972, claiming that
the order of dismissal dated January 26, 1970 was void because of lack of due
process and for having been obtained thru fraud, for the petitioner had mis­represented
to the court the status of the case by making Judge Blanco — who was not the
Presiding Judge when private respondents presented their evidence and rested
their case in 1963 — believe that trial had not even begun.  Petitioner opposed the petition for relief,
contending that private respondents were served a copy of the order of
dismissal on February 5, 1970, and, therefore, pursuant to Section 3, Rule 38
of the Revised Rules of Court, the petition for relief should have been filed within
60 days from February 5, 1970, and with­in 6 months from January 26, 1970, when
the order was issued; hence, the filing of the petition was beyond the
reglementary period.

The petition for relief
was given due course, and on August 24, 1972, respondent Judge issued an order
setting aside the orders dated January 26, 1970 and June 23, 1972, and setting
the continuation of the trial for September 15, 1972.  The reasons stated by respondent Judge in
support of this order are:  (1) the
record shows that while respondent Porferio Ytoriaga was furnished with a copy
of the dismissal order dated January 26, 1970, his counsel, Atty. Atol, was
never served with a copy thereof, hence, pursuant to the settled rule that
where a party appears by attorney, a notice to the client and not to his
attorney is not a notice in law, the said order of dismissal never became
final; and (2) the order dated January 26, 1970 
was without legal basis, considering that private respondents had
already presented their evidence and rested their case on September 4, 1963,
and the hearing scheduled for January 26, 1970 was for the  reception of petitioner’s evidence;
consequently, the non-appearance of private respondents and their counsel at
the said hearing could not mean failure to prosecute on their part, but may at
worst only be construed as a waiver on private respondents’ part of the right
to cross-examine the witnesses whom petitioner might present and to object to
the admissibility of petitioner’s evidence. 
Petitioner, in a motion dated October 16, 1972, moved for a
reconsideration of the order dated August 24, 1972, on the grounds that the
court had full authority to issue the order of dismissal, and that the said
order, which had long become final, was beyond the court’s power to
reconsider.  On November 10, 1972,
respondent Judge issued an order denying the motion for reconsideration and
setting the continuation of trial for December 12, 1972.

Hence, the present
recourse by petitioner.

The main thrust of the
petition is that respondent Judge acted without or in excess of jurisdiction or
with grave abuse of discretion in setting aside the orders dated January 26,
1970 and June 23, 1972, because the said orders have long become final and
executory, hence, may no longer be disturbed.

It is uncontroverted that
the order of January 26, 1970, dismissing the case for private respondents’
“failure to prosecute,” was served upon private respond­ents
themselves, and not upon their attorney of record, Atty. Amado B. Atol, and
that there was no court order directing that the court’s processes,
particularly the order of January 26, 1970, should be served directly upon
private respondents.  It is settled that
when a party is represented by counsel, notice should be made upon the counsel,
and notice upon the party himself is not considered notice in law unless
service upon the party is ordered by the court.^[1] The term “every written notice”
used in Section 2 of Rule 13 includes notice of decisions or orders.^[2] Private respondents’ counsel of record not
having been served with notice of the order dismissing the case, the said order
did not become final.

Petitioner argues that
since private respondents’ counsel of record, Atty. Atol, had been appointed
Chief of the Secret Service of the Iloilo City Police Depart­ment, he was not
anymore allowed to practice law, hence, private respondents being no longer
represented by counsel, notice to them should be deemed legally effective.  The argument is not valid, for it fails to
consider the need of observing a legal formality before a counsel of record may
be considered relieved of his responsibility as such counsel on account of
withdrawal.  A lawyer’s withdrawal as
counsel must be made in a formal petition filed in the case, and where no such
petition has been accomplished, notice of judgment rendered in the case served
on the counsel of record is, for all legal puposes, notice to the client, the
date of receipt of which is considered the starting point from which the
period of appeal prescribed by law shall begin to run.^[3] Not having withdrawn formally as
counsel in the case, nor having been substituted by his clients with another lawyer, or dismissed as
such counsel, Atty. Atol was, for all legal purposes, private respondents’
attorney upon whom the court’s processes should have been served.

It will also be noted that, as found by respond­ent Judge,
private respondents, as plaintiffs, adduced their evidence and rested their
case on September 4, 1963, or more than six years before the dismissal of the
case on January 26, 1970.  It was,
therefore, the turn of petitioner, as defendant, to present his evidence.  In the premises, private respondents could
not possibly have failed to prosecute; they were already past the stage where
they could still be charged with such failure. 
As correctly held by respondent Judge, private respondents’ absence at
the hearing scheduled on January 26, 1970 “can only be construed as a
waiver on their part to cross-examine the witnesses that defendants might
present at the continuation of trial and to object to the admissibility of the
latter’s evidence.” The right to cross-examine petitioner’s witnesses
and/or object to his evidence is a right that belongs to private respondents
which they can certainly waive.  Such
waiver could be nothing more than the “intentional relinquishment of a
known right,”^[4]
and, as such, should not have been taken against private respondents.

To dismiss the case after private respondents had submitted their
evidence and rested their case, would not only be to hold said respondents accountable for
waiving a right, but also to deny them one of the cardinal primary rights of a
litigant, which is, corollary to the right to adduce evidence, the right to
have the said evidence considered by the court.^[5] The dismissal of the case for failure
to prosecute, when in truth private respondents had already presented their
evidence and rested their case, and, therefore, had duly prosecuted their case,
would in effect mean a total disregard by the court of evidence presented by a
party in the regular course of trial and now forming part of the record.  The ends of justice would be better served
if, in its deliberative function, the court would consider the said evidence
together with the evidence to be adduced by petitioner.

However, we are of the view that relief from judgment under Rule
38 of the Revised Rules of Court is not the appropriate remedy.  A petition for relief is available only if
the judgment or order complained of has already become final and executory;^[6]
but here, as earlier noted, the order of January 26, 1970 never attained
finality for the reason that notice thereof was not served upon private
respondents’ counsel of record.  The
petition for relief may nevertheless be considered as a second motion for
reconsideration or a motion for new trial based on fraud and lack of procedural
due process.

Under the circumstances of the case, the issuance of the orders
now complained of cannot be said to have been characterized with abuse of
discretion.

ACCORDINGLY, the instant petition is denied.  The temporary restraining order issued by
this Court on December 27, 1972 is hereby dissolved.  No costs.

Fernando, Antonio, Concepcion, Jr., and Santos, JJ., concur.

Barredo, J., concurs in a
separate opinion.

Aquino, J., in the result.

^[1]
Rule 13, Section 2, Revised Rules of Court; McGrath vs. Collector
of Internal Revenue, et al., L-12721, February 28, 1961, 1 SCRA 639, 643; Elli,
et al. vs. Ditan, et al., L-17444, June 30, 1962, 5 SCRA 503, 506; J.M.
Javier Logging Corporation vs. Mardo, etc., et al., L-28188, August 27,
1968, 24 SCRA 776, 778-779.

^[2]
Notor vs. Daza, et al., 76 Phil. 850; Chainani vs. Tancinco,
etc., et al., 90 Phil. 862, 864.

^[3]
Damaso, et al. vs. Arrieta, etc., et al., L-18879,
January 31, 1963, citing Baquiran vs. CA, et al.,
L-14551, July 31, 1961.

^[4]
Castro vs. Del Rosario, etc., et
al., L-17915, January 30, 1967, 19 SCRA 196, 203.

^[5]
Caltex Filipino Managers and Supervisors Associa­tion vs. CIR, et al.,
L-30632-33, April 11, 1972, 44 SCRA 350, 366-367, citing Ang
Tibay vs. CIR, et al., 69 Phil. 635; Edwards vs. McCoy, 22 Phil.
598.

^[6]
Anuran vs. Aquino, et al., 38 Phil. 29; Veluz vs. JP of Sariaya,
etc., et al., 42 Phil. 557, 563; Punzalan vs. Papica, et al., L-13804,
February 29, 1960.

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