PHILIPPINE NATIONAL BANK, PLAINTIFF AND APPELLANT, VS. SANTOS DONASCO, ET AL., DEFENDANTS AND APPELLANTS.

This is an appeal from an order of the Court of First Instance of Surigao,
the Hon. Teofllo Buslon, presiding, dismissing the complaint in Civil Case No.
514 of the said court, for plaintiff’s failure to prosecute.

The facts leading to the present appeal may be stated as follows:

Plaintiff Philippine National Bank, on February 22, 1952, filed a complaint
with the Court of First Instance of Surigao, seeking the recovery from the
defendants of the sum of P477.74 with interest representing the balance of a
loan of P600.00 obtained by the defendants from the plaintiff on April 5, 1949,
secured by a real estate mortgage. Defendants, in their answer, admitted the
loan but alleged in defense that said sum had practically been paid because of a
certain amount, to wit P477.23, representing interest on a pre-war loan which
had been liquidated and paid; that said interest should have been applied to the
balance of the loan. The answer also includes a counterclaim for damages in the
sum of P500.00 as attorney’s fees and P100.00 as litigation expenses.,

Upon motion of the plaintiff, the case was included in the calendar of
hearing for November, 1952. On March 18, 1955, the court motu propio
reset the hearing for May 27, 1955, which scheduled hearing was again reset for
September 17, 1958.

When the case was called for hearing on September 17, 1958, there was no
appearance for the plaintiff and the attorney for the defendants moved for the
dismissal of the case. The motion was granted and the court dismissed the case
for plaintiff’s lack of interest and failure to prosecute.

On October 16, 1958, plaintiff filed a motion for new trial on the ground of
honest mistake or excusable negligence, alleging that on September 2, 1958,
counsel for the plaintiff filed a motion for postponement of the trial scheduled
for September 17, 1959 to some other date, with a notice of hearing of the
motion on September 6, 1958; that in the honest belief that he would receive
timely notice of the-resolution of the said motion, he did not appear at the
trial set for September 17, 1958. Accompanying the motion for new trial is an
affidavit of merit.

The motion for new trial was denied in an order of the lower court of
November 19, 1958. From the prder denying the motion for new trial, plaintiff
appealed to the Court of Appeals, alleging that the lower court erred:

1. In denying plaintiff’s urgent motion for postponement dated September 2,
1958;

2. In dismissing the case for alleged lack of interest on the part of the
plaintiff; and

3. In denying plaintiff’s motion for new trial, thus denying the plaintiff of
his day in court.

but the Court of Appeals forwarded the said case to us , on the ground that
there is no issue of fact raised in the appeal.

In its memorandum submitted to the Supreme Court on May 21, 1962,
plaintiff-appellant admitted that the only legal question raised in the present
appeal is “whether the uncontroverted facts and circumstance’s narrated in
appellant’s brief, which prevented plaintiff’s counsel to appear at the trial of
this case at Tandag, Surigao on September 17, 1958, constitute a valid mistake,
accident or excusable negligence in the light of the remedy provided for by Sec
1, Rule 37 of the Rules of Court (RCA p. 81). In its brief the following are the
facts being relied upon by plaintiff-appellant as constituting valid mistake,
accident, or excusable negligence:

That the corresponding notice of hearing of the case was received by
plaintiff at its Head Office in Manila on August 22, 1958, and on the same date
of receipt, the Chief of the legal department of the plaintiff, coursed and sent
a communication to the Cebu Branch attorneys, advising the latter to represent
the plaintiff bank in this case of Tandag, Surigao on September 17, 1958; that
the Cebu Branch attorneys received the said communication of August 22, 1958 on
September 2, 1958 and forthwith consulted their respective calendars of hearings
previously set and verified that on September 16, 17, and 19, 1958, they would
have to appear (and did in fact appear) in the hearings of other civil cases in
the Court of First Instance of Cebu; that due to this conflict of schedules of
hearings in Cebu and in Tandag, Surigao, the Cebu Branch attorneys on the same
date of their receipt of the communication from the Manila office, advising them
of the hearing of this case at Tandag, Surigao on September 17, 1958, sent via
air mail and special delivery an urgent motion for postponement of the hearing
and a copy thereof was furnished to the defendants’ counsel, Atty. Cipriano
Alvizo, also by air mail and special delivery; that weeks before September 17,
1958, the scheduled trial of the case, the Cebu Branch-attorneys did not receive
any information about any resolution of the court in the said urgent motion for
postponement set for hearing and consideration by the court on September 6,
1968; that in view of that failure to receive any notice of the action of the
court in their motion for postponement, the Cebu Branch attorneys believed in
good faith that it was favoralbly acted upon.

An examination of the records shows that no proof of service of the copy of
the said motion for postponement upon the defendants was presented. There is at
the bottom of the motion, a notice addressed to the attorney for the defendants
for the hearing of said motion on September 6, 1958 but aside from that notice
there is no evidence whatsoever that copy of said motion was served upon said
attorney. Upon this ground the court did not hear said motion on September 6,
1958, and heard the case, as scheduled, on September 17, 1958. On this date the
court at the instance of the attorney for the defendant, denied the motion for
postponement and dismissed the case for plaintiff’s failure to prosecute.

Our Rules provides:

“Sec. 26.—Proof of Service, to be filed with motion.—No motion shall
be acted upon by the court without proof of service of the notice thereof.”
(Rule 26)

and the Supreme Court in certain cases, ruled:

“Notice of motion is necessary and without proof of service thereof,
a motion is nothing but a useless piece of paper which the clerk should not
receive for filing.” (Manakil vs. Revilla, 42 Phil., 81; Roman Catholic
Bishop of Lipa vs. Municipality of Unisan, 44 Phil., 866; Director of
Lands vs. Sanz, 45 Phil., 117).

As regards the arguments of
counsel for plaintiff that it believed in good faith that in view of its failure
to receive notice of the action on its motion for postponement, the same was
favorably acted upon by the court, the Supreme Court in one case held:

“* * * it is already settled law that the granting for postponement
being one directed to the sound discretion of the court, its resolution on the
matter will not be interferred with by a higher court, unless it was rendered
with grave abuse of discretion prejudicial to the rights of the movant.” (Blue
Bar Coconut Co. vs. Hilario, et al., G.R. No. L-12699, May 31, 1961)

Conformably with the observations of the Court of Appeals in its resolution
dated June 26, 1961, it is apparent that plaintiff believed that its motion for
postponement would be granted, and, acting upon that belief, its attorney did
not appear in court at the time of the trial. But it is well settled that the
approval of motions for postponement cannot be taken for granted, the same being
addressed to the discretion of the court.

“Motions for postponement are addressed to the sound discretion of the court
and the movant has no right to assume that his motion would be granted, and must
be in court on the day of the hearing so that if his motion is denied, he can
proceed “with the trial of the case.” (Republic of the Philippines vs.
Gumayan, et al., G.R. No. L-16780, May 31, 1961)

Since the attorneys for the plaintiff did not receive notice of the action of
the court on their motion for postponement they had no reason to assume that the
motion was or would be granted and it was their duty and obligation to appear on
the date of the trial. Their failure to appear under the circumstances is wholly
inexcusable.

The order appealed from, dismissing the complaint is, therefore, affirmed
with costs agaufet the plaintiff-appellant.

Bengzon, C.J., Padilla, Bautista Angelo, Concepcion, Reyes,. J. B. L.,
Paredes, Dizon and Makalintal, JJ., concur.