CO LEA CHU, HON. GAUDENCIO CLORIBEL, JUDGE, COURT OF FIRST INSTANCE OF MANILA, AND THE CITY SHERIFF OF MANILA, PETITIONERS, VS. CORAZON GONZALES AND THE COURT OF APPEALS, RESPON…

Appeal from a decision of the Court of Appeals.^[1]
The facts in the opinion written by Justice Jose P. Bengzon,
then Presiding Justice of the Court of Appeals, viz:

“Aggrieved by what she alleges to be a denial of her day in
court, Petitioner Corazon Gonzales has come to this Court pleading in the alternative
for re-trial of her case or her right to appeal from a decision rendered after
an ex-parte hearing of a counterclaim against her.

It appears that petitioner was a lessee of a stall in the Manila
Shopping Center, She in turn
verbally subleased the same on a month-to-month basis to respondent Go Lea Chu, also a lessee of the same shopping Center earlier
dispossessed of her stall.

On July 25, 1963, when it was necessary to demolish the stall for
the construction of the Cinerama, petitioner assigned her 15-year leasehold
right to the R & R Realty Company for P11,000.00, P5,500.00 of which was
paid to petitioner and the other P5,500.00 to ‘become due and payable only
after final judgment has been rendered by the court in Civil Case No. 111371’
to whoever may be adjudged entitled thereto, although P2,000.00 was paid by R
& R Realty Company to respondent Go Lea Chu in
consideration of her vacating the subject stall on August 21, 1963.

When the case was called for hearing on February 28, 1964, counsel for petitioner was not
present, thereby prompting the respondent Judge to dismiss petitioner’s
complaint and order Go Lea Chu to prove her
counterclaim before the Deputy Clerk of Court. 
When petitioner’s counsel arrived, he pleaded to the respondent Judge in
his chamber for reconsideration of the order but the latter refused, advising
him to a motion for reconsideration.

Right on that day, petitioner’s counsel filed a motion for recon­sideration
of the order dismissing the complaint.

On March 2, 1964,
petitioner’s counsel received a copy of the order and the decision, both dated February 28, 1964, dismissing
petitioner’s complaint and ordering her to pay respondent Go Lea Chu one-half of whatever amount she would receive from the
R & R Realty Company by reason of the closure of the stall in question plus
P900.00 as attorney’s fees.

On March 9, 1964,
petitioner’s counsel received a copy of the respondent Judge’s order denying
his motion for reconsideration of order, and on the same day petitioner filed a
verified pleading entitled ‘Second Motion for Reconsideration.’ The motion for
reconsideration was set for oral argument on March 21, 1964.  On May 11, 1964, the respondent Judge
denied the second motion for reconsideration on the ground that the same was pro
forma.  Petitioner’s counsel
received copy of the denial on May 15,
1964, and on June 2, 1964,
petitioner’s counsel filed a notice of appeal and a motion for extension to
submit a record on appeal and deposited the cash appeal bond.

On June 5, 1964, an order of execution was issued followed by
notice of garnishment issued on the next day, both of which were served by
counsel for respondent Go Lea Chu and by a deputy
sheriff of Manila upon the R & R Realty Company which paid to them P3, 500.
00.

 Surprisingly, however, on June 10, 1964, after the writ of
execution and garnishment were served and enforced, the respondent Judge issue
an order granting petitioner 30 days from said date within which to file her
record on appeal. The order does not appear to have been served upon the
parties although counsel for respondents was aware of it, quoting the order in
his answer.”

The judgment of the Court of Appeals under review reads:

“Wherefore, the order and decision by the respondent Judge
dismissing plaintiff’s complaint and granting the counterclaim of respondent Go
Lea Chu are set aside and respondent Judge is hereby
ordered to conduct a re-trial of the case. 
The respondent Go Lea Chu is ordered to
deposit before the Clerk of the Court of First Instance of Manila P3,500.00,
she prematurely collected from the R & R Realty Company.  Costs against respondent Co Lea Chu.  So
ordered.”

1.  Was certiorari the
appropriate remedy?  Petitioners take the
view that private respondent’s remedy is appeal, not certiorari.  They premise their argument on the averment
that the lower court’s decision is final. 
If this were true, the argument knocks at an open door, in the ordinary
course of law, appeal should be the remedy. 
Here, how facts and circumstances justify resort to certiorari.

There is an officer exercising judicial function – trial judge Gaudencio Cloribel.  Capricious and whimsical exercise of judicial
power amounting to grave abuse of discretion is charged.

That charge finds ample support in the following:

(a)  The trial was set on February 28, 1964 at 8:30 a. m. Counsel for respondent Gonzales came about ten
minutes late.  For such tardiness the
trial judge ordered the dismissal of private respondent’s complaint, directed
an ex–parte hearing on the adversary’s
counterclaim.  That dismissal is with
prejudice.^[2]
One’s day in court should not so easily be denied a suitor.

Respondent Gonzales counsel proffered an explanation for the delay,
Counsel earlier in the morning went to Branch XIV to inquire the deputy clerk
of court the date of hearing of the case entitled Republic of the Philippines
vs. Patricia Ventura” (Civil Case 53283). 
From thence, he proceeded to Branch XV in connection with the case
People of the Philippines
vs. Adolfo Ong” (Criminal Case 72332) in which
counsel’s law office represented defendant. 
Perhaps it was not absolutely necessary for counsel to first attend to
his business in Branches XIV and XV.  But
it is not unusual for a practicing attorney to do so.  Counsel may have inadvertently forgotten to
take note of time. This understandable. 
Because, preoccupation with work on hand induces some such lapses.  One thing is certain though.  Tardiness for ten minutes is not such
contemptuous disregard of his duty to appear on time; it does not warrant
immediate and absolute purging of his client’s complaint and letting the
opponent’s counterclaim to be heard ex-parte, Gil
vs. Talaña, supra, should have
reminded the trial judge that where plaintiff and counsel “were only about
fifteen minutes late in arriving at the court,” it was “an abuse of
discretion of the trial court to dismiss the case definitely,” and that it
“would be too drastic” to make a litigant “suffer for such a
short tardiness.”  And again, in The
Philippine National Bank vs. Philippine Recording
System, Inc., L-11310, March 29, 1960, where plaintiff’s
witnesses were not in court at the scheduled time of hearing, did not arrive at
the extended period of ten minutes, but finally showed up barely two minutes
after the entry of the order of dismissal, this Court reprobated the trial
could in the following language: 
“Once more we are confronted with a question which could have been
avoided had the trial judge been more human and tolerant.  As the records show, barely two minutes had
passed after the entry of the order of dismissal when plaintiff’s witnesses
arrived in court. There was a display on the
part of the court of incorrect use
of discretion.  It was
impatience personified.”^[3]

It could have been an easy matter for the trial judge to call off
the ex–parte hearing before his deputy
clerk, or if hearing had started, to have allowed Gonzales’ lawyer to take part
therein if only to cross-examine the witnesses and to present his client’s own
evidence.  Because Gonzales was not
declared in default on the counterclaim. 
She was entitled to be heard.  Not
that such action, on the part of the trial judge would bring about injustice to
Go Lea Chu. 
The latter did not stand suffer prejudice.  And then, one distinct advantage is that the
rights of the parties could have been tested in the crucible of a trial on the
merits.

Tardiness in court attendance, indeed, is to be discouraged.  Because, by Canon 21 of the Canons of
Professional Ethics, a lawyer is bound “not only to his client, but also
to the Courts and to the public to be punctual in attendance.”  Justice Malcolm aptly stated that “[a]n
attorney of character should make it unnecessary for a court to discipline him
on account of tardy appearance.”^[4]
This, however, is no license for a trial judge to summarily dismiss a case
where tardiness for very short time occasioned by excusable negligence is
brought to the court’s attention.  For, a
judge is enjoined to be temperate and attentive, patient and impartial.^[5]
He is warned that “he is not a depositary of arbitrary power, but a judge
under the sanction of law.”^[6]

There was grave abuse of discretion.

(b) On June 5,
1964, Judge Cloribel authorized execution of the
February 28, 1964 judgment, which reads: 
“WHEREFORE, judgment is hereby rendered reiterating the dismissal
of plaintiff’s complaint, and on the counterclaim, ordering the plaintiff to
pay to the defendant one-half (1/2) of whatever amount she will receive from
the R & R Realty Corporation or from anybody arising from the closure of
Stall 3-B, Section 1, Pasillo 4 of the Manila
Shopping Center, plus the sum of P900.00 as attorney’s fees, and the costs of
suit.”

The judge then said that judgment had become final and executory.  P3,500.00
of the money due respondent Gonzales was by reason of a
garnishment, paid over by R & R Realty Company to petitioner Go Lea Chu.

But is the decision really final? 
Petitioners’ pose is that it became final “after April 1, 1964.” The February 28, 1964 decision was
received on March 2, 1964.  On March
9, 1964, respondent Gonzales filed what she incorrectly styled
“Second Motion for Reconsideration.” This is actually the first motion
directed at the judgment.  Because, the one
she filed on February 28, 1964
was only against the order of dismissal. 
And on February 28, 1964,
she could not have assailed the judgment for the reason that the judgment had
not yet been served upon her.

The motion for reconsideration on March 9, 1964 decidedly is not pro forma.  We join the Court of Appeals in the statement
that “[f]ar from being pro forma
the motion in question sought the reconsideration of the judgment at least on
two grounds:  (1) the structure of the
judgment lies on a mistake or excusable negligence of petitioner’s counsel
which ordinary prudence could not have guarded against and which impaired her
rights and (2) that the evidence presented on the counterclaim to justify the
decision and is against the law.”7

Needless to state, a motion which not pro forma
suspends the running of the period to perfect an appeal.

That motion for reconsideration was denied on May 11, 1964. Notice of the denial
was served on respondent Gonzales on May 15, 1964.  On June
2, 1964, respondent Gonzales filed her notice of appeal and cash
appeal bond and a motion for extension of time to file her record on
appeal.  It was on June 5, 1964 that the court granted the petition
for a writ of execution.  And yet, on
June 10 following, the trial judge, acting upon Gonzales’ motion for extension
of time, granted her a 30-day extension beginning from said date within
which to file her record on appeal.

It thus results that the judgment had not yet become final.  Because, from March 2 when Gonzales was
notified of the judgment, to March 9 when she filed her motion for
reconsideration but seven (7) days elapsed; and from May 15, when she was
notified of the denial of her motion for reconsideration, to June 2, when she
filed her notice of appeal and cash appeal bond with a prayer for extension of
time to file record on appeal, eighteen (18) days had elapsed; or a total of
twenty-five (25) days.

No reason then exists why a writ of execution based on a final
judgment should issue.  In fact, the
trial judge reversed his own position. 
After he issued the writ of execution, he allowed the defeated party an
extension to file a record on appeal. 
The execution so authorized is one which could not be categorized as
execution pending appeal “upon good reasons” provided for in Section
2, Rule 39 of the Rules of Court. The court’s order granting the writ did not
specify any good reason why execution pending appeal should issue.  In fact, the motion for execution was granted
upon the erroneous belief that the judgment had become final.

We hold that the writ of execution herein was likewise given in grave
abuse of discretion.  Said writ and the
proceedings thereunder are null and void.

Confronted by the clear abuse of discretion committed by the
lower court in dismissing her suit, which deprived her of her day in court, and
in executing the February 28, 1964
decision which the lower court incorrectly pronounced to be final and executory, she certainly had no recourse but to seek
extraordinary relief.

Certiorari is the remedy.

2.  Private petitioner here
complains that it was wrong for the Court of Appeals to have directed her to
deposit with the clerk of court of the Court of First Instance of Manila the
P3,500,00 which she received from R & R Realty Company.  She launches a two-pronged attack:  (1) Gonzales lid not pray for such relief in
her pleadings; and (2) this power belongs to the Court of First Instance.

We cannot give our stamp of approval to the position thus
taken.  The Court of First Instance
should not have directed execution.  The
garnishment issued in pursuance thereof produced adverse effects on the right
of Gonzales because the money allegedly due her fell into the hands of Go Lea Chu.  The Court of
Appeals, under the law, is em­powered to correct that error in the exercise of
its supervisory power the Court of First Instance.8 And this, because Gonzales, in the
certiorari proceedings, urged the appellate court to annul these proceedings in
the Court of First Instance.

Besides, as we have declared in Schenker
vs. Gemperle, L-16449 August 31,
1962:  “A judgment may grant the
relief to which a party in whose favor it is entered is entitled, even if the
party has not demanded relief in his pleadings.” Long ago, this Court, in Shioji vs. Harvey,
43 Phil. 333, 344, ruled: 
“Independent of any statutory provision, we assert that every court
has inherent power to do all things reasonably necessary for the administration
of justice within the scope of its jurisdiction.

Indeed, to deprive a court of power to give substantial justice
is to render the administration thereof impotent and ineffectual.  The prevailing precept is currently embodied
in Section 6, Rule 135 of the Rules of Court, which categorically provides:

“SEC.6.  Means to
carry jurisdiction into effect.  When law jurisdiction is conferred on a court
or judicial officer, all auxiliary writs, processes and other means necessary
to carry it into effect may be employed by such court or officer; and if the
procedure to be followed in the exercise of such jurisdiction not specifically
pointed out law or by these rules any suitable process or mode of proceeding
may be adopted which appears conformable to the spirit of said law or
rules.”

The foregoing more than suffice to sustain the power of the Court
of Appeals to direct petitioner Go Lea Chu to deposit
P3,500.00 with the Court of First instance.

For the reasons given, the judgment of the Court of Appeals
hereby affirmed.

Costs against petitioner Go Lea Chu.

SO ORDERED.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar,  Ruiz Castro,
Angeles, and Fernando, JJ., concur.

^[1]
CA-G.R. No. 34205-R, entitled “Corazon Gonzales, Petitioner vs.
Hon. Gaudencio Cloribel,
Judge, Court of First Instance of Manila, Go Lea Chu,
R & R Realty Co., Inc., and The City Sheriff of Manila, Respondents.”

^[2]
Section 3, Rule 17 of the Revised Rules of Court; Gil vs. Talaña, 96 Phil. 32, 34.

^[3]
Emphasis supplied.

^[4]
Malcolm, Legal and Judicial Ethics, 1949 ed., p. 32.

^[5]
Canon 4, Canons of Judicial Ethics.  See
also:  Canon 31,

^[6] Canon
18, id.

7
Valerio vs. Tan, 97 Phil. 558, 560; Carbonel vs. Padilla, 75 Phil. 95, 100-101; Ylanan vs. Mercado, 94 Phil. 769, 771.

8
Section 30, Judiciary Act of 1948, as amended.