G.R. No. L-28203. January 22, 1971
ELEUTERIO BACARRO, PETITIONER, VS. THE HONORABLE COURT OF APPEALS (FIFTH DIVISION), THE HONORABLE BERNARDO TEVES, JUDGE OF THE COURT OF FIRST INSTANCE OF MISAMIS ORIENTAL, 15TH…
CONCEPCION, C.J.:
Petitioner Eleuterio Bacarro seeks the reversal of a resolution of the Court of
Appeals dismissing the present case.
Petitioner is the registered owner of Lot No. 2955 of the Cadastral
Survey of Cagayan, containing an area of 10,364
square meters, more or less, located in the barrio of Macasandig,
Cagayan de Oro City, Misamis Oriental.
Alleging that on September 16,
1964, he was compelled by the Municipal Judge of Baungon, Imbatug, Bukidnon, to appear before the latter’s office and then and
there coerced and forced, under threat of prosecution and loss of said Lot No.
2955, in its entirety, to execute a deed of reconveyance
of one-half thereof to herein respondent Vivencia
Velez Vda. de Gaerlan,
petitioner, acting through Atty. Tommy C. Pacana,
filed with the Court of First Instance of Misamis
Oriental a complaint, dated April 26,
1965 – which was docketed as Civil Case No. 2521 of said Court _
against Mrs. Gaerlan, for the annulment of said
deed of reconveyance, with damages and other
incidental reliefs.
In her answer with counterclaim, dated May 13, 1965, filed by
Atty. Pantaleon Z. Salcedo,
Mrs. Gaerlan admitted the execution of the contested
deed of reconveyance before the municipal judge of Baungon, Bukidnon, and alleged
that the subject matter of said deed is part of a bigger lot of over 15,000
square meters, which, long before the war, had been entrusted to the care and
administration of petitioner’s father; that, upon the latter’s death, said land
was partitioned between petitioner and his brother, Nicolas Bacarro,
who got a portion of about 5,000 square meters, the rest, with an area of over
10,000 square meters, having been left with petitioner herein; that, through fraud
and grave abuse of confidence, petitioner and Nicolas Bacarro
had caused their respective shares in said land to be registered in their
names; and that heeding the pleas for mercy of Mrs. Gaerlan
and her daughter, Miss Pilar Gaerlan,
petitioner executed freely and voluntarily the contested deed of reconveyance.
On September 13, 1966, Attys. Cecilio
P. Luminarias and Alfredo C. Caballero entered their
appearance, in said Case No. 2521, as counsel for petitioner herein, ”in
collaboration with Atty. Tommy C. Pacana, x x x with a request that
henceforth notices and other processes incident hereto be likewise
furnished” said attorneys. On the
same date, Hon. Bernardo Teves, as Judge of the Court
of First Instance of Misamis Oriental, Branch IV,
issued, in said Civil Case No. 2521, an order reading:
“Considering the manifestation of Atty. Salcedo
for the defendant, which is well-taken, the plaintiff is hereby directed to
make the proper amendment to his complaint within ten (10) days and furnish a
copy of the document to Atty. Salcedo. Failure to comply with this order will result
in the dismissal of this complaint.”
On September 27, 1966, Mrs. Gaerlan
filed a written manifestation inviting attention to the fact that petitioner
had not complied with said order of September 13, 1966, despite the expiration
of the period of time therein set forth, and to the case of Castillo v. Sebullina[1]
in which the Supreme Court upheld the dismissal of said case, by the trial
Judge, upon refusal of counsel for the plaintiff to recall the witnesses whose
testimony had been taken, at a former hearing, before another judge, said
counsel having insisted on their right to rely upon the transcript of the notes
taken of the aforementioned testimony.
Thereupon, Judge Teves issued an order of the
same date (September 27, 1966) dismissing the complaint as well as – “upon
manifestation of Atty. Salcedo” – the
counterclaim of Mrs. Gaerlan.
On or about October 25,
1966, a “motion for reconsideration and/or new trial” was
filed by Atty. Caballero, on behalf of petitioner herein, “after duly relieving his previous counsel.”
In support thereof, petitioner alleged, inter alia,
that Mrs. Gaerlan had not filed any pleading
objecting to his complaint; that Mrs. Gaerlan is the
one in possession of the contested deed of reconveyance
in her favor; and that when the case was called before Branch II of the Court,
her counsel was furnished by petitioner’s counsel, in open court, a true copy
of the contested document, after the filing of her answer. Petitioner’s affidavit of merit was attached,
as Exh. A, to said motion. In said affidavit, petitioner asserted that
the land in question had been acquired by his father by virtue of a deed of
sale executed, in his favor, by Mrs. Gaerlan, on October 8, 1909, and duly
acknowledged before a notary public on the same date, copy of which deed of
sale is attached as Exh. A-1 to said affidavit of
merit and to the motion for reconsideration and/or new trial; that, at the
hearing of the lot in question in the corresponding cadastral proceedings,
nobody, except the petitioner herein, claimed said lot; and that he had not
been furnished copy of the contested deed of reconveyance.
The motion was denied by Judge Teves in
an order dated November 14, 1966,
copy of which was served on the same day upon Atty. Pacana. Notice of said order was not received by
Atty. Caballero until March 15, 1967,
on which date he filed the corresponding notice of appeal, appeal bond and
record on appeal. On March 31, 1967,
Mrs. Gaerlan objected to the approval of said record
on appeal, upon the ground, among others, that the period to appeal should be
reckoned from November 14, 1966, when copy of the order of the same date was
served upon Atty. Pacana, and that the orders of
September 27 (dismissing the complaint) and November 14, 1966 (denying the
motion for reconsideration and/or new trial) were, therefore, final and executory, when Atty. Caballero filed, on March 15, 1967,
the notice of appeal, appeal bond and record on appeal. Upon this ground, Judge Teves
disapproved the record on appeal and dismissed petitioner’s appeal in an order
dated April 15, 1967. Petitioner’s motion for reconsideration of
this order was similarly denied on May
27, 1967.
On May 30, 1967,
petitioner filed with the Court of Appeals a petition – docketed therein as
CA-G. R. No. 39632-R – against Judge Teves and Mrs. Gaerlan, to review by certiorari the aforementioned
orders of Judge Teves. By a resolution dated July 17, 1967, the
Court of Appeals dismissed said petition, upon the ground that the period to
appeal from the orders complained of should be computed from said notice to
Atty. Tommy C. Pacana, on November 14, 1966, and
that, consequently, the notice of appeal, appeal bond and record on appeal
filed by Atty. Caballero on March 15, 1967, were “three months late.”
Hence, the present petition for review against the Court of Appeals, Judge Teves and Mrs. Gaerlan.
The issue in this case hinges on whether or not petitioner’s
period to appeal from the order of Judge Teves, dated
November 14, 1966, denying his (petitioner’s) motion for reconsideration and/or
new trial, of October 25, 1966, began to run on November 14, 1966, when copy of
said order was served upon petitioner’s original counsel, Atty. Pacana, or on March 15, 1967, when notice of said order
was served upon Atty. Caballero. Citing
Olivares and Colegio de San Jose
vs. Leola, et al.2, Judge Teves
adopted the first alternative and so did the Court of Appeals.
We hold otherwise. It is
true that, in U. S.
vs. Borromeo,3 the Supreme Court held that:
“x x x. No substitution of attorneys will be allowed
unless the following requisites concur:
“1. There must always be filed a written
application for such substitution.
“2. There must always be filed the written consent
of the client to such substitution.
“3. There must always be filed the written consent
of the attorney substituted if such consent can be obtained.
“4. In case such written consent can not be
procured, there must be filed with the application for substitution proof of
the service of notice of such motion in the manner required by the rules upon
the attorney to be substituted.
“Unless these formalities are complied with no substitution
will be permitted and the attorney who properly appeared last in the cause
before such application for substitution will be regarded as the attorney of
record and will be held responsible for the proper conduct of the cause.”
It is conceded that this rule governs the substitution of attorneys, but this is not
the question confronting Us. By entering
his appearance on September 13, Atty. Caballero did not substitute Atty.
Tommy C. Pacana, but became one of the
attorneys for the petitioner herein, “in collaboration with Atty. Pacana.” Neither
did Atty. Caballero substitute
or try to substitute the latter on October 25, 1966, when petitioner’s motion for
reconsideration and/or new trial, of that date, was filed. Atty. Caballero was petitioner’s counsel
since September 13, 1966. The statement in said motion
for reconsideration and/or new trial of October 25, 1966, to the effect that,
through Atty. Caballero, petitioner, “after duly relieving his previous
counsel,” moved “for the reconsideration of the order of x x x September 27, 1966, and/or
for new trial,” had the effect of retaining Caballero, or continuing
his services, as counsel for the petitioner, and dropping Atty. Pacana as such counsel.
The question narrows down, therefore, to whether petitioner could
– as regards the Court and Mrs. Gaerlan –
validly dispense with the services of Atty. Pacana,
without securing his consent, or without proof that he had been notified of
petitioner’s aforementioned motion for reconsideration and/or new trial, or
without any notice thereof. The answer
is in the affirmative, for “(a) client may at any time dismiss his
attorney x x x”,4 without
prejudice, of course, to such rights as the latter may have against the former.
Independently of such rights, if any, the relations between Atty. Pacana and petitioner herein, as attorney and client,
ceased, therefore, from the filing of said motion for reconsideration
and/or new trial, insofar as the Court is concerned, and from the receipt of
copy thereof by Atty. Salcedo, insofar as Mrs. Gaerlan was concerned.
Indeed, it was Atty. Caballero, not Atty. Pacana, to whom Atty. Salcedo
served copy of his pleading subsequently to October 25, 1966,5 thereby
indicating that he (Atty. Salcedo) no longer
considered Atty. Pacana as one of the attorneys for
the petitioner herein. As a matter of fact,
in her opposition to the motion for reconsideration and/or new trial, as well
as in her opposition to the motion for reconsideration of the order of April
15, 1967, Mrs. Gaerlan referred to Atty. Alfredo
Caballero as “Counsel for the Plaintiff, ” thus leaving no room for
doubt that she no longer considered Atty. Pacana as
one of his (petitioner’s) attorneys, in view of the statement in said motion
for reconsideration and/or new trial, to the effect that he (Atty. Pacana) had been duly relieved as petitioner’s
counsel. Similarly, the order of November 14, 1966, which opens with
the statement “acting upon the motion
for reconsideration and/or new
trial, filed by Atty. Alfredo C. Caballero, counsel for plaintiff x x x” – not one of the
attorneys for plaintiff – suggests that Judge Teves
had drawn the same conclusion from the aforementioned statement.
In this connection, it is noteworthy that, although the rule laid
down in U. S. v. Borromeo6 was
quoted with approval in Olivares and Colegio de San
Jose v. Leola, et al.7, the
decision in the latter case explicitly adverted to the fact that the record
thereof failed to show that the party concerned “had dispensed with
the services” of its original counsel.
In the case at bar, petitioner’s aforesaid motion for reconsideration
and/or new trial positively stated, not only that he had relieved his previous
counsel, but, also, that this had been “duly” done, thereby
indicating that the matter had been taken up with Atty. Pacana. In fact, there is nothing in the record to
indicate the contrary or that Atty. Pacana still
claims to represent or to be entitled to represent petitioner herein.
Again, in Rustia vs. Judge of First
Instance8, a case was dismissed on motion of the plaintiffs,
without the intervention of his attorney of record,9 based
upon a compromise agreement entered into with the defendant. Although said attorney was notified neither
of said motion nor of the order of dismissal, the validity of the compromise
agreement and of the order of dismissal was upheld upon the ground that,
“(b)y appearing personally and presenting a motion they (plaintiffs)
impliedly dismissed their lawyer,” for “a client may dismiss his lawyer at any time” and has
“an undoubted right to compromise a suit without the intervention of his
lawyer.” Now, if a party may thus “impliedly” dismiss his
counsel, it stands to reason that the dismissal may be made by stating in a
pleading, like the above-mentioned motion for reconsideration and/or new trial,
that said counsel had been duly relieved as such by his client, even if the
former had not been served notice or copy of the motion.
In view of the
foregoing, We hold that respondent Judge Teves
had committed a grave abuse of discretion amounting to excess of jurisdiction
in refusing to approve petitioner’s record on appeal and in dismissing his
appeal in the aforementioned Civil Case No. 2521, and that the Court of Appeals had, likewise, erred in dismissing the
petition for certiorari filed by petitioner herein. Hence, the resolution of the Court of Appeals
complained of should be, as it is hereby reversed, and the orders of Judge Teves, dated April 15 and May 27, 1967, are, in turn, annulled. Respondent Judge Teves
is directed to give due course to petitioner’s appeal in said Civil Case No.
2521, with costs against respondent Vivencia Velez Vda. de Gaerlan. Writ granted.
IT IS SO ORDERED.
Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro,
Fernando, Teehankee, Barredo,
Villamor, and Makasiar, JJ., concur.
[1]
31 Phil. 518.
2
97 Phil. 253.
3
20 Phil. 189, 190-191.
4
Rule 138, section 26, Rules of
Court. Underscoring ours.
5 Opposition
to the motion for reconsideration and/or new trial (Annex I); Opposition to the
approval of the record on appeal (Annex K); Opposition to the motion for
reconsideration of the order of April
15, 1967 (Annex O).
6
Supra.
7
Supra.
8
44 Phil. 62, 65.
9
Whose contract with the plaintiffs stipulated that they could not compromise
their claim without his express consent.