ELPIDIO JAVELLANA, PLAINTIFF-APPELLANT, VS. NICOLAS LUTERO, JUDGE OF THE MUNICIPAL COURT OF ILOILO CITY AND THE ROMAN CATHOLIC ARCHBISHOP OF JARO, DEFENDANTS-APPELLEES.

This is an appeal from a decision of the Court of First Instance
of Iloilo (CC 6425) dismissing a
petition for re­lief directed against the judgment rendered by the municipal
court of Iloilo City in its civil case 7220.

On March 29, 1963 the Roman Catholic Archbishop of Jaro, Iloilo
filed a detainer complaint against Elpidio Javellana with the
municipal court of Iloilo City,
presided by Judge Nicolas Lutero.  The hearing, originally set for April 30,
1963, was
postponed to May 24 for failure
of the defendant to receive summons, and then postponed again to June 27 for the same reason.  It was thereafter postponed to July 16, then
to July 24, and finally to August 27, all at the behest of the
defendant’s Atty. Jose Hautea, on the grounds that
“he has not finished his business transactions in Manila”
and that “he hurt his right foot toe”.  The last postponement was granted by the
municipal court with the warning that no further postponement would be
entertained.

When the case was called for trial on August 27, 1963, neither the defendant nor his
counsel Atty. Hautea appeared although one Atty. Romy Peña who was present in
court verbally
moved for the postponement of the trial on the ground that Atty. Hautea was in Manila
attending to a business transaction.  The
plaintiff’s counsel objected to the motion on the ground that the defendant and
his counsel were well aware of the court’s previous admonition that no further
postponement of the case would be granted, and then manifested that the
witnesses and the evidence for the plaintiff were ready for presentation on
that date.  The verbal motion for post­ponement
was denied and the plaintiff was directed to adduce his evidence.  During the presentation of the plaintiff’s
evi­dence, the municipal court received a telegram from Atty. Hautea requesting postponement of the hearing.  The trial proceeded nevertheless, and, on the
basis of the plaintiff’s evidence, the court on the same date rendered judgment
for the plaintiff and against the defendant. 
The latter’s counsel received a copy of the decision on September 9,
1963.  On the
following September 11, he filed a motion to set aside
judgment and for new trial.  This motion
was denied on September 26; a copy of the order of denial was received by him
on the same date.

On November 16, 1963, or about 50 days later, the defend­ant thru
his same counsel filed a petition for relief (from the judgment of the
municipal court) with the Court of First Instance of Iloilo, praying that the
decision in question be set aside, that the detainer
case be set for trial on the me­rits, and, pending determination of the
petition, that an in­junction issue restraining the enforcement of the
decision.  Counsel for the petitioner
averred that his absence on the date of the trial was excusable as he attended
to a very ur­gent business transaction in Manila; that before his depart­ure
for the latter city, he verbally informed the respondent judge that his return
to Iloilo might be delayed and that he might not arrive on time for the trial
of the case as set; that he called at both the law office and the residence of
the counsel for the private respondent to inform him of the desired
postponement and the reason therefor, but the latter
was in Bacolod at the time; that he exercised utmost
diligence and precaution in the sense that while in Manila he sent a telegram
to the respondent judge, asking for postponement; and that notwithstanding all
the foregoing, the municipal court nevertheless proceeded with the trial in his
absence and that of his client, allowed the private respondent to present his
evidence ex parte, and rendered a decision against the
peti­tioner, thus depriving the latter of his day in court.  Coun­sel for the petitioner further asserted
that his client
has a good and substantial defense, which is, that the complain­ant had given his
client an option to buy the premises sub­ject-matter of the complaint below,
and that a reopening of the case would cause the private respondent no real
injury.

This petition was given due course, the respondents were required
to file their answers, and a cease-and-desist order was issued as prayed
for.  On February 22, 1964,
after due hearing, the Court of First Instance rendered judgment dismissing the petition.

Hence the present recourse.

From the perspective of the environmental circumstances obtaining
in this case, the present appeal is palpably devoid of merit.

A counsel for any party in a judicial controversy, by mandate of
the canons of legal ethics, and with due regard for the elementary standards of
fair play, is duty bound to prepare for trial with diligence and deliberate
speed.  This norm of conduct is no less applicable in a detainer case, such as the one at bar, even if the issues are essentially simple and
uncomplicated.  It is obvious that the
counsel for the petitioner-appellant has been remiss in this respect.

The case was set for trial six times.  Thrice it was
postponed at the behest of the said counsel. 
The last postponement was granted on July 24, 1963 with the unequivocal admonition by the judge that no
further postponement would be countenanced. 
The case was reset for hearing on
August 27, 1963, which
means that the appellant’s counsel had more than a month’s time to so adjust
his schedule of activities as to obviate a conflict between his business transactions and
his calendar of hearings.  Came August 27, and neither he nor the appellant appeared at the trial.  His absence on the latter date was not
occasioned by illness or some other supervening occurrence which unavoid­ably
and justifiably prevented him from appearing in court.

In our view, it
was the bounden duty of the said counsel, under the circumstances, to give preferential attention to the
case.  As things were, he regarded the
municipal court as a mere marionette that
must ever await his pleasure.  This
attitude on his part is censurable as it reveals more than just a modicum of
disrespect for the judiciary and the established machinery of justice.

Nor is his censurable conduct mitigated by
the appear­ance in court on August 27 of another attorney who verbally moved
for postponement nor by his telegram received by the municipal judge on the
same date asking for continuance.  These
circumstances, upon the contrary, emphasize his presumptuousness vis–a–vis the municipal judge.

It is thus crystal-clear from the foregoing disquisition that the
petitioner-appellant was not deprived of his day in court, and that the respondent municipal judge did not
err in proceeding with the trial, allowing the private respondent to present his evidence ex parte, and thereafter rendering decision for the plaintiff-appellee.  It follows that the peti­tioner was not
entitled to the remedy of a petition
for re­lief.

Moreover, after the denial of his motion to set aside judgment and for new trial, the appellant had ample time to appeal; instead he
allowed the judgment to become final and executory.  His argument that an appeal would have been
futile as there was no evidence upon which such appeal could be based, merits
scant consideration.  An appeal from the
decision of a municipal court to the Court of First Instance has the effect of
vacating the decision (sec. 9, Rule
40, new Rules of Court; sec. 9, Rule
40, of the old Rules), and the
action is to be tried de novo without regard to the proof presented
in the municipal court or the conclusions reached thereon (Colegio
de San Jose vs. Sison,
56 Phil. 344, 351; Lizo vs. Carandang, 73 Phil.
649; Crisostomo vs. Director of Prisons, 41
Phil. 368).  To grant the appellant’s
petition for relief would amount to reviving his right to appeal which he had
irretrievably lost through the gross inaction of his counsel (see Espinosa vs. Yatco, etc., et al., L-16435, Jan. 31, 1963, and the cases therein cited).  This in law cannot be done.

ACCORDINGLY, the decision appealed from is affirmed.  As this appeal is patently frivolous and
dilatory, this Court, under the authority of section 3 of Rule 142 of the Rules of Court, hereby assesses treble
costs against the petitioner-appellant Elpidio Javellana, said costs to be paid by his counsel, Atty. Jose Hautea.

Reyes, JBL, Makalintal, Bengzon, Zaldivar, Sanchez,
Angeles and Fernando, JJ.,
concur.

Concepcion, C.J., and Dizon, JJ., did not take part.