PASTOR D. AGO, PETITIONER, VS. HON. TEOFILO B. BUSLON, ET AL., RESPONDENTS.

On or about April 11, 1960, respondent spouses, Monica Urbiztondo
and Pedro Orcullo, instituted, against petitioner Pastor D. Ago, civil
case No. 1349 of the Court of First Instance of Surigao, to recover the
rentals allegedly due for the use, as a private road, for his logging
operations in the municipality of Lianga, Province of Surigao, of
portion of a land, allegedly belonging to said respondents, in the
aforementioned municipality and province. In the complaint filed in
said case respondents prayed for judgment in their favor:

“* * * (a) requiring the defendant to pay rentals
for the passage of his private road across the land of the plaintiffs
at the rate of P50.00 a month;

“(b) ordering defendant to
pay the accrued rentals since February, 1957 up to the filing of this
complaint in the total sum of P1,950.00;

“(c) requiring defendant to pay P200.00 for the destroyed coconut trees and nipa palms;

“(d) ordering the closing of the road, if the defendant fail to pay the rentals; and

“(e) requiring defendant to pay attorney’s fees in the sum of P500.00 and to pay the costs.”

In his answer to the complaint, petitioner, alleged, inter alia,
that the aforesaid road traverses, not the land of the Orcullos, but
that of one Olimpia C. Jalandoni, and that respondent court had no
jurisdiction to try and decide the case. Petitioner, likewise, set up a
counterclaim, for alleged damages, aggregating P37,000.00. After the
filing of respondents’ answer to this counterclaim, the case was set
for hearing on October 11, 1960. Petitioner’s counsel moved for the
postponement of said hearing, for the reason that he had, on the same
date, another hearing in the Court of First Instance of Manila. On
October 1, 1960, this motion was denied upon the ground: (1) that the
notice sent to petitioner’s counsel, advising him that the case would
be heard on October 11, 1960, is dated August 13, 1960, whereas the
notice of hearing of the Court of First Instance of Manila had been
sent to him on September 3, 1960; and (2) that the date of hearing
appearing in the latter notice was originally October 4, 1960, but the
typewritten digit “4” thereon was crossed out and number “11” hand
written in lieu thereof, in ordinary ink, without any initial to
indicate the identity of the person who had made the correction.

Ten (10) days later, respondent court received a telegram of
petitioner herein, dated October 10, 1960, once more requesting
postponement of the hearing, alleging this time that he had “just” been
informed of the aforementioned order of October 1, 1960, and that he
had no time to appear before respondent court, in the Province of
Surigao, he having gone to Manila to attend the hearings in cases Nos.
36770 and 39990 of the “Manila Court”. This motion was, likewise,
denied because it had not been served on the opposing counsel, and the
Orcullos and their counsel were ready for trial, they “having come all
the way from Lianga to Tandag, thru rough seas, and their counsel,
also, having come all the way,from (the municipality of) Surigao to
(that of) Tandag, a distance of 186 Kms.”

Thereupon, respondent court proceeded to receive respondents’
evidence, but it did not render judgment until over eight (8) months
later, or on June 13, 1961, after noting that petitioner had meanwhile
“done nothing in the premises.” On the date last mentioned, decision
was rendered sentencing petitioner to pay to the Orcullos: (a) P220 as
damages for trees cut by petitioner; (b) P2,250 as rentals from
February, 1957 to October, 1960; (c) P50 a month from November, 1960,
until the disputed land shall have been vacated by petitioner; (d) P500
as attorney’s fees; (e) P90 as incidental expenses; and (f) the costs.

On or about July 11, 1961, petitioner filed a motion to set this
decision aside and to dismiss the case for lack of jurisdiction, which
motion was denied on November 24, 1961. Notice of the order to this
effect was received by petitioner on January 6, 1962, who instituted
the present action for certiorari on April 6, 1962, upon the theory
that respondent court had no jurisdiction to hear and decide said case;
that the decision therein rendered is, accordingly, null and void; and
that petitioner has “no appeal, nor other plain, speedy and adequate
remedy in the ordinary course of law.”

Being a party in.said case No. 1349 and having been duly notified,
not only of the decision therein rendered, but, also, of the order of
November 24, 1961, denying his motion of July 11, 1961, it is obvious
that petitioner could have appealed from said decision, and from the
aforementioned order of November 24, 1961, and that such an appeal
would have been a plain, speedy and adequate remedy in the ordinary
course of law. Yet, he did not avail of such remedy. What is more, it
would appear that the present action has been resorted to in order to
offset petitioner’s failure to appeal from the decision and order
adverted to above. Indeed, although notice of the order of November 24,
1961, denying his motion of July 11, 1961, had been received on January
6, 1962, petitioner took no step whatsoever to seek any relief from
said decision and order until April 6, 1962, or long after the
expiration of the reglementary period to interpose said appeal. It is
well settled that the writ of certiorari may not be availed of to make
up for the loss, through omission or over-sight, of the right to appeal
(Casilan, et al. vs. Hon. Filomeno B. Ibanez, et al., L-19968-69,
October 31, 1962; Santos vs. Vda. de Cerdenola, et al., L-18412, July 31, 1962; Francisco, et al. vs. Hon. Hermogenes Caluag, et, al., L-1536B, December 26, 1961; City of Manila vs. Hon. Higino B. Macadaeg, et al., L-15134, November 29, 1961; Paringit vs. Hon. Honorato Masakayan, et al., L-16578, July 31, 1961; Hon. Francisco Jose, et al. vs. Zulueta, et al., L-16598, May 31, 1961; Profeta, et al. vs. Gutierrez David, et al., 71 Phil. 582, see, also, Grospe, et al. vs. Court of Appeals, 106 Phil., 1144; Ong Sit vs. Piccio, 79 Phil., 785; Castro vs. Pena, 80 Phil., 488; Gil vs. Gil III, 80 Phil., 791; Gov’t of U.S. vs. Judge of CFI of Pampanga, 50 Phil, 975, 979; Santos vs. Court of Appeals, 49 Phil., 398; Ello vs. Judge of First Instance of Antique, 49 Phil., 152; Gonzales vs. Salas, 49 Phil., 1; De los Santos vs. Mapa, 46 Phil., 791).

Moreover, although an action for the recovery of not more than
P5.000 falls within the exclusive original jurisdiction of justice of
the peace courts, the Orcullos premised their right of action upon
their alleged title to the land described in the complaint and
petitioner contested such allegation, thus putting the title to said
land in issue, the determination of which is within the exclusive
original competence of courts of first instance. Then, too,
petitioner’s counterclaim for P37,000 was, also, within the exclusive
original jurisdiction of the latter courts, and there are ample
precedents to the effect that “although the original claim involves
less than the jurisdictional amount,* * * jurisdiction can be sustained
if the counterclaim (of the compulsory type)”—such as the one set up by
petitioner herein, based upon the damages allegedly suffered by him in
consequence of the filing of said complaint—”exceeds the jurisdictional
amount”. (Moore Federal Practice, 2nd ed. [1948], Vol. 3, p. 41;
Ginsburg vs. Pacific Mutual Life Ins. Co. of California, 69 Fed. [2d] 97; Home Life Ins. Co. vs. Sipp II Fed. [2d] 474; American Sheet Tin Plate Co. vs. Winzeler [D.C.], 227 Fed. 321, 324; Brix vs. People’s Mutual Life Ins. Co., 41 P. 2d. 537, 2 Cal. 2d. 446; Coggins vs. Superior Court, 16 P. 2d. 148, 127 Cal. App. 412; Emery vs. Pacific Employees Ins. Co., 67 P. 2d. 1046, 8 Cal. 2d. 663.)

Wherefore, the petition is hereby denied and the case dismissed, with costs against the petitioner. It is so ordered.

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