GREGORIO RODILLAS, PLAINTIFF-APPELLANT, VS. FARMACIA CENTRAL, INC., DEFENDANT-APPELLEE.

This is an appeal from a judgment of the Court of First Instance of
Manila, dismissing an action for overtime pay for failure on
plaintiff’s part to prosecute the case. The appeal was brought directly
to this Court. It is claimed that the dismissal deprived the
plaintiff-appellant of his day in court, and constituted a grave abuse
of discretion. The facts are of record and the questions raised
exclusively of law.

The action is for the recovery of overtime pay, with attorney’s fees
as damages. The complaint alleges that plaintiff had rendered three
hours of overtime service every day since his employment as driver, for
which he claims corresponding overtime pay. The defendant-appellee
denied the claim and demands damages in a counterclaim. Issues having
been joined, attorney for plaintiff filed on May 6, 1953 an ex parte
motion to set the case for immediate hearing. Pursuant to this motion,
the court set it for hearing on May 19, 1953 at 1:00 o’clock P.M. When
the case was called for hearing in accordance with this assignment,
plaintiff appeared, but without the presence of his counsel. On that
day, at about 11:00 o’clock in the morning, the court had received a
telegram which reads as follows: “Please postpone Rodillas versus
Farmacia late June busy continuation criminal trial Batangas. Atty
Suanes.” As counsel for defendant objected to the postponement prayed
for in the telegram, and as plaintiff stated that he could not proceed
with the trial, the court dismissed the case. Against this order, a
motion for reconsideration was submitted, but the same was denied by
the trial court.

In this Court, counsel for the plaintiff-appellant argues that since
he had asked for the inclusion of the case in the trial court’s
calendar at its earliest convenience, as early as January, 1953, and
that the case was barely seven months old, plaintiff can not be said to
have failed to prosecute his case “for an unreasonable length of time.”

We have held that failure of a plaintiff’s attorney to be present at
the trial constitutes a failure to prosecute, if the party is unwilling
to proceed with the scheduled trial (Del Prado vs. Gonzales, et al.,^[*]
G.R. No. L-3933). In any case, counsel for plaintiff-appellant should
have presented his motion for postponement at least three days in
advance, in accordance with section 2, 3 and 4, Rule 26 of the Rules of
Court. The petition for postponement came on the very day of the trial
and is without notice to the adverse party. As plaintiff-appellant
failed to comply with the rules, it can not be said that the trial
court abused its discretion in denying the motion, or that
plaintiff-appellant has been deprived of any right without due process
of law.

The order appealed from is hereby affirmed, with costs against the plaintiff-appellant.

Paras, C.J., Pablo, Bengzon, Padilla, Montemayor, Jugo, Bautista Angelo, Concepcion, and Reyes, J.B.L. JJ., concur

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^[*] Promulgated on May 28, 1952.