DIOSDADO ESPINOSA, PETITIONER, VS. HON. NICASIO A. YATCO OF THE COURT OF FIRST INSTANCE OF RIZAL AND J.M. TUAZON & CO., INC., REPRESENTED BY GREGORIO ARANETA, INC., RESPONDENTS.

This is a petition for certiorari and mandamus fried by Diosdado
Espinosa to annul the order of the Court of First Instance of Rizal
(Branch V) in Civil Case No. Q-4064, denying his petition for relief
from judgment under Rule 38, and/or to compel the respondent Judge to
approve his record on appeal in connection with the appeal which he was
trying to take from the aforesaid order.

The petition was given due course and to stay execution of the
lower court’s decision, upon petitioner’s filing a bond of P500.00, the
writ of preliminary injunction prayed for was issued by this Court.

The record shows and it is not disputed that on March 5, 1959 ,
herein respondent J. M. Tuazon & Co., represented by Gregorio
Araneta, Inc., filed said Civil Case No. Q-4064.in the court below
against Diosdado Espinosa, herein petitioner, for the recovery of
possession of a parcel of land registered in its name and covered by
Transfer Certificate of Title No. 1267 of the land records of Quezon
City .

In due time, defendant filed his answer. The issues having thus
been joined, the lower court, on May 15, 1959 , set the case for
hearing on June 25, 1959 , with proper notice to both parties. When
that date arrived, however, counsel for defendant verbally moved for
continuance of the hearing, claiming that his client “has not come bank
from s. mission by the Office of the President of the Philippines .”
Considering that the case had been set for hearing as early as May 15,
1959, so that defendant has had ample time to prepare for trial, or to
make a timely motion for postponement, if necessary, the lower court
denied counsel’s verbal motion for continuance, and thereafter heard
plaintiff’s evidence. Counsel for defendant also failed to
cross-examine plaintiff’s witnesses and did not present any evidence
for his client, whereupon the case was submitted for decision.

The following day, June 26, 1959 , the lower court rendered a
decision against the defendant and in favor of plaintiff corporation.
In said decision, defendant’s verbal motion for postponement was again
passed upon and ruled out as unmeritorious.

Defendant received a copy of the decision on June 30, 1959, but
instead of filing a motion for new trial, or of appealing therefrom, he
filed on August 27, 1959, —long after the decision had already become
final and executory—a “petition to set aside judgment.” It is alleged
that his absence at the hearing of June 25, 1959 was due to mistake
and/or excusable negligence, as explained in his affidavit attached to
the petition, and that he has good and valid defenses which he could
prove if given a chance. Plaintiff corporation opposed the petition on
the grounds that the facts alleged therein do not constitute mistake or
excusable neglect to warrant the setting” aside of the decision; that
defendant is guilty of laches and consequently not entitled to relief;
and that if defendant really has a metitorious defense, the same could
have been presented at the hearing of June 25, 1959 even in his absence.

Acting upon the petition, the lower court denied the same for lack
of merit in its order of September 5, 1959 , copy of which was received
by defendant on September 17, 1959 . Not satisfied with the order,
defendant on October 16, 1959 filed a motion of appeal, appeal bond and
record on appeal. Plaintiff corporation again filed its opposition and
on October 24, 1959 , the lower court disapproved the record on appeal,
stating that the decision rendered in the case had become final and
executory as of July 30, 1959 .

Arguing that he was appealing from the order dated September 5,
1959 , which denied his petition for relief, and not from the decision
rendered in the case, defendant on November 14, 1959 filed a motion to
set aside the order of October 24, 1959 . The motion, however, was
denied. From, that order of denial, defendant brought the case to this
Court thru the present petition for certiorari and mandamus.

The petition is devoid of merit.

We are not impressed by defendant’s pretense that he has valid and
meritorious defenses which he can prove if granted a reopening of the
hearing. It appears that he merely reiterated in his affidavit some of
the allegations he made in his answer, i.e., that he and his
predecessors in interest have been in open, continuous and quiet
possession of the lot in question in the concept of owners since 1893;
that the said lot is not covered by plaintiff’s title, and assuming
that ft is included therein, such inclusion was obtained illegally and
thru fraud. Needless to say, such allegations cannot stand in the face
of plaintiff’s indefeasible title to the land under the Torrens System,
the validity of which cannot be collaterally attacked. What is more,
the facts or circumstances constituting the alleged fraud in the
issuance of the title have not been alleged, and the claim that the lot
in dispute is not covered by plaintiff’s title and that defendant thru
his predecessors in interest has been in open and continuous possession
thereof in the concept of owner since 1893, are more conclusions or
opinions, and as such are not valid.

In any event, this Court has already held that “the relief provided
for by Rule 38 is of equitable character and is allowed only in
exceptional cases: where there is no available or other adequate
remedy.” ( Santos vs. Manila Electric Co., et al., G. R. No. L-7735, December 29, 1955 , citing Palomares, et al. vs.
Jimenez, et al., 90 Phil., 778.) In the present case, defendant had
another adequate remedy available to him which was either a motion for
new trial, or appeal from the adverse decision of the lower court,
especially since it is not pretended that said defendant was prevented
by fraud, accident, mistake or excusable negligence from filing such
motion or taking the appeal. Thus, after June 30, 1959 , when defendant
admittedly received a copy of the decision, he had plenty of time
within which to file a motion for new trial or to perfect an appeal. He
did not, however, pursue any of those remedies within the time allowed
by law, and instead filed a petition for relief, allowing in the
meantime the judgment to become final and executory. The rule is that
relief will not be granted to a party who seeks to be relieved from the
effects of a judgment when the loss of the remedy at law was due to his
own negligence (Robles et al vs. San Jose , et al., 99 Phil., 658; 52 Off. Gaz., 6193; Smith Bell and Co., Ltd. vs. Philippine Milling Co., 107 Phil., 160. or a mistaken mode of procedure (49 C.J.S. p. 617; Santos vs. Manila Electric Co., et al., supra).
To sustain, defendant’s petition for relief now would be tantamount to
reviving the right of appeal which has already been lost either because
of inexcusable negligence, or due to a mistaken mode of procedure by
counsel.

Wherefore, the petition for certiorari and mandamus is denied, and
the preliminary injunction heretofore issued dissolved, with costs
against petitioner.

Bautista. Angelo, Labrador , Concepcion , Reyes, J. B. L., Barrera, Paredes and Makalintal, JJ., concur.