EMILIANA CRUZ, PETITIONER-APPELLANT, VS. ERNESTO OPPEN, INC., HON. CRISANTO ARAGON, AS JUDGE OF THE MUNICIPAL COURT OF MANILA AND THE SHERIFF OF MANILA, RESPONDENTS-APPELLEES.

Petitioner seeks a reversal of the order of the Court of First
Instance of Manila dismissing her petition for relief under Rule 38 of the
Revised Rules of Court.  The pertinent
proceedings in the courts below are:

On March 28, 1963, respondent judge of the City Court (formerly
Municipal Court) of Manila rendered judgment by default^[1]
against petitioner directing her, inter alia,
to vacate Stall No. 78 of the Manila Cartimar Market,
subject of the ejectment suit; to pay P71.00 for
rentals in arrears and rentals at the rate of P2.70 a day from March 20, 1963
until the premises shall have been vacated. 
On May 22, 1963,
petitioner moved to set aside the default order, decision and the writ of
execution issued to enforce the judgment. 
Ground:  Want of jurisdiction over
her person.  Because, so she avers,
summons and copy of the complaint were served upon her salesgirl, Teresita Burce, who did not turn
over said papers to her.  On May 25, 1963, respondent judge denied
the motion.  On June 4, 1963, petitioner moved to reconsider and
sought new trial, reiterating the jurisdictional ground.  This time, she appended to the motion an
affidavit of her salesgirl, Teresita Burce, which recites that certain papers which she came to
know later as summons and complaint in said case were served upon her; that she
“was not able to give said papers” to petitioner Emiliana
Cruz; that she closed the store in the last week of March, 1963 upon
instructions of petitioner; and that thereafter she went to Albay,
by reason of which she was unable to pay “the balance of the March
rental” with the P30 given her by petitioner for the purpose.  On June
8, 1963, respondent judge again denied this motion.

On August 1, 1963,
petitioner went to the Court of First Instance for relief from the city court’s
judgment of March 28, 1963.^[2]
She asked that the decision and writ of execution be set aside and that trial
on the merits be had.  Respondents’
answer to the petition – bearing date of October 14, 1963 – presented solely issues of law,
principally (1) that the petition was time-barred; and (2) granting that the
petition was filed within the reglementary period,
the negligence of petitioner’s salesgirl, Teresita Burce, is not excusable. 
Petitioner’s reply of December
16, 1963 reasoned out that her petition for relief was timely and
that the negligence of her salesgirl is one not “pertaining to peti­tioner
herself” and that the latter’s “failure to answer the complaint and
air her side of the case before the respondent inferior court cannot be blamed
on her entirely and absolutely.”^[3]
On June 8, 1964, re­spondent
corporation filed a motion to resolve its answer to the petition, upon the
averment that said answer partakes of a motion to dismiss.  Copy of this motion, sent by registered mail,
was received by petitioner counsel on June
25, 1964.  On July 3, 1964,
the Court of First Instance issued an order, which reads:  “It appearing that the petitioner came
to know of the judgment from which relief is sought on May 22, 1963; that she
filed this petition only on August 1, 1963, or after a lapse of 71 days; and
that the period of 60 days from the time the petitioner learns of the judgment
within which she may file a petition for relief is never interrupted, as prayed
for, the petition is dismissed with costs against the petitioner.”

A motion to reconsider was denied.  Hence, this appeal.

The petition must be dismissed. 
And for a number of reasons.

1.  Petitioner had notice of
the judgment of the city court at the latest on May 22, 1963.  For,
in her motion filed on that date – May 22, 1963 – to set aside the default
order, decision and writ of execution, she averred “[t]hat it was only a
few days ago that defendant came to know of the case filed against her and she
forthwith referred the matter to her undersigned counsel, who Immediately went
to court and looked for the record of the case.”^[4]
She filed the petition for relief on August 1 following.  Between May 22 and August 1, 71 days elapsed. Her petition for relief
is eleven (11) days late.  Because,
Section 3, Rule 38 of the Revised Rules of Court, requires, amongst others,
that a petition for relief be filed “within sixty (60) days after the
petitioner learns of the judgment, order, or other proceeding to be set
aside.”  Her failure to comply with
this period peremptorily exacted by the rules warrants dismissal.^[5]

2.  But petitioner argues
that the period consumed by the pro­ceedings in the city court should be
deducted from the 60-day period.  Here is
how she explains her case:  She lodged
with the inferior court her motion to set aside the order of default, decision
and writ of execution on May 22. 
Respondent judge denied this motion on May 25.  On June 4, she moved for reconsideration and
new trial – which was denied on June 8. 
Notice of this denial was received by her counsel on July 3.  Between July 3 and August 1, when her
petition for relief before the Court of First Instance was filed – is only 29
days.  Ergo, the 60-day time-limit
has not expired.

Petitioner’s argument fails of its purpose.  For, a doctrine which gained foothold through
reiteration is that the 60-day period set forth in Rule 38 is absolutely fixed,
inextendible, never interrupted,^[6]
and cannot be subjected to any condition or contingency.  Because the period fixed “is itself
devised to meet a condition or contingency”; the equitable remedy a Rule
38 ”is an act grace, as it were, designed to give the aggrieved party another
and last chance and a petitioner for relief being “in the position one who
begs, such party’s privilege is not to impose conditions, haggle or
dilly-dally, but to grab what is offered him.”^[7]
So it is that neither the pendency of certiorari
proceeding before this Court, as in Palomares vs.
Jimenez, supra, nor the filing of a motion to reconsider the
order, subject of the petition or relief after learning of it, is in Rafanan vs. Rafanan,
supra, will toll the running of the limited period.

Petitioner here is in a worse position.  Her motion to set asides the city court’s default
order, decision (which has become final) and writ of execution, was filed in
the wrong court – the said inferior court which did not have jurisdiction to
grant relief from judgment.  That motion
amounts to nothing; it is no petition for relief at all.  Certainly, the time consumed in the
proceedings therefor did not suspend the running of
the 60-day period.

In the circumstances here presented, the Court of First Instance
of Manila had no alternative but to dismiss the petition for relief.

3. The petition for relief from judgment in the Court of First
Instance suffers from another infirmity. 
Petitioner’s affidavit and that of Teresita Burce attached thereto do not show that if the judgment of
the city court were overturned and a new trial ordered, probability exists that
a different conclusion will be reached. 
On this point, all that the affidavits could say is that the premises
were vacated in the last week of March, 1963; that petitioner gave Teresita Burce money P30.00 – to
pay for the balance of the unpaid rental for that month; that Teresita was not able to pay as she “went to the province
of Albay
after closing the store.” Apart from the fact that the excuse for
nonpayment is puerile, there he other fact that the amount given was
short.  For, the judgment calls for the
payment of P71,00, rentals in arrears up to March 19, and daily rentals
of P2.70 from March 20, 1963.  Since there is no denial of failure to pay in
full rentals previously due, and that the balance of unpaid rentals for the
month of March had not been paid, respondent corporation made a clear case for ejectment

4.  Nor is there any showing
of fraud, accident, mistake or excusable negligence which would authorize
relief under Rule 38, Teresita Burce
is of age.  Her affidavit is to the
effect that she receive the summons and copy of the complaint; that she failed
to deliver them to petitioner, as she immediately proceed to Albay after she closed the store in the last week of March,
1963; and that since then, she has not communicated with petitioner.  Citation of jurisprudential support is
unnecessary for the view that this affidavit does not show excusable
negligence.

5.  Petitioner assails the
order of the Court of First Instance of July 3, 1964 dismissing her petition
for relief, as one issued without a hearing on the merits thereof.

That petition for relief recites the facts and the proceedings
had in the city court, explains the bearing of the facts on the legal
issues.  Respondents’ answer thereto
concedes the facts but says that petitioner is not entitled to relief as a
matter of law, Petitioner’s reply to the answer rebuts the points of law
raised.  It is in this setting that on June 8, 1964 respondents filed their
“Motion for Resolution of Answer Filed by Defendant Ernesto Oppen, Inc.” This motion may not have been skillfully
labeled in effect, however, it is a motion for judgment on the pleadings.  No question of facts is involved.  The court may make a decision upon the legal
issues and on the basis of the pleadings
and the reasons advanced by the parties.

Applicable then is Section 1, Rule 19 of the Revised Rules of
Court (formerly Section 10, Rule 35 of the old Rules), which states that where
an answer “admits the material allegations of the adverse party’s
pleading, the court may, on motion of that party
direct judgment on such pleading.”^[8]
On this point, then Justice Arsenio P. Dizon of the Court of Appeals now of this Court, analyzing
the provisions of Section 10, Rule 35 of the old Rules of Court, observed^[9]
that “the rule does not state whether the motion for judgment on the
pleadings may be considered ex-parte or only upon
notice served on the adverse party,” and concluded that a motion for
judgment on the pleadings in which all the material averments of the complaint
are admitted, “is one that may he considered ex-parte
because, upon the particular fact thus presented and laid before the court, the
plaintiff is entitled to the precise order applied for.”  Such is the situation here.  No need there to set for oral arguments^[10]
respondents’ motion of June 8.

6. Concededly, the order of July
3, 1984 dismissing the petition was issued without hearing the
parties on oral arguments.  But the
proceedings did not end there.  For,
petitioner moved to reconsider that order. 
In that motion for reconsideration, she has had the opportunity to
present, and in fact did present, her written arguments once again on the legal
issues.  She set her aforesaid motion to
reconsider for hearing on August 15,
1964.  She has had
opportunity to be heard.  She cannot
complain. Unfortunately for her, it was denied on that same day.

In this factual environment, it cannot be said that petitioner
was denied her day in court.  Lack of
original notice to set the motion to resolve for hearing was cured by the fact
that she was heard on her motion for re consideration.

She was not, therefore, prejudiced by the fact that respondents’
motion to decide the case was not set for hearing.

7.  At all events, if the
Court of First Instance erred in revolving respondent corporation’s motion for
resolution of its answer wit out setting it f for hearing under the
circumstances here stated, it was harmless error;^[11]
it does not affect the substantial rights of petition; petitioner will not fare
any better if the case were to be return to the inferior court for a new trial;
the appealed orders need not be disturbed. 
For, the law does not require useless ceremony.^[12]

For the reasons given, the orders under review are hereby
affirmed.

Costs against petitioner.

SO ORDERED.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Ruiz Castro,
Angeles, and Fernando, JJ., concur.

^[1]
Civil Case No. 107594, entitled “Ernesto Oppen,
Inc., Plaintiff, vs. Emiliana Cruz,
Dependant.”

^[2]
Civil Case No. 54655, entitled “Emiliana Cruz,
Petitioner, vs. Ernesto Oppen, Inc., Hon. Crisanto Aragon,
as Judge of the Municipal Court of Manila (Branch IV), and the Sheriff of
Manila, Respondents.”

^[3]
Record on Appeal, p. 40.

^[4]
Record on Appeal, p. 4.

^[5] See:  Prospero vs. Robles, L-16870, May 31,
1963; Quijano vs. Tameta,
59 O.G. No. 4, pp. 545-546; Smith, Pell & Co., Ltd. vs. Philippine
Milling Co., 57 O.G. No. 15, pp 2701, 2702; Samson vs. Dinglasan, L-15326, October 25, 1960; Maniego
vs. Manalo, 104 Phil. 1023, 1026; J. M. Tuason & Co., Inc. vs. De la Cruz, 92 Phil. 832,
833.  In Gordulan
vs. Gordulan, L-17722, October 9, 1961, it was held that “[rule] 38
is a special remedy and the requirements therein are considered as conditions sine
qua non to the proper allowance of relief.”

^[6] Palomares vs. Jimenez, 90 Phil. 773, 776; Rafanan vs. Rafanan, 98
Phil. 162, 164-165; Gana vs,
Abaya, 98 Phil. 165, 167; Quijano
vs. Tameta, supra; Smith, Bell
& Co., Ltd. vs. Philippine Milling Co., supra; Mercado
vs. Domingo, L-19452, December 17, 1966.

^[7] Palomares vs. Jimenez, supra

^[8]
Emphasis supplied.

^[9]
Rub vs. Bayona, 50 O. G. No. 3, pp, 1212,
1213-1214.

^[10]
In Remonte vs. Bonto
(1966), 16 Supreme Court Reports, pp. 257, 260-61, we said:  “The purpose of the law in requiring a
three-day notice of hearing of a motion, to wit:  ‘to avoid surprises upon the opposite party
and to give to the latter time to study and meet the arguments of the motion’
(J.M. Tuason & Co. vs. Magdañgal,
G. R. L-15539, January 30, 1962), has been sufficiently complied with.  For, plaintiffs have had the chance to
present – and in fact virtually did present – their objection to fie motion to
dismiss, De Borja, et al. vs. Tan, et al., 93
Phil. 167, 171.  Hearing the motion to
dismiss has thus become a superfluity, a surplusage.  The ends of justice have been subserved.  And the
court’s failure to note that, on the date of hearing of said motion plaintiffs
had no notice thereof, descends to the level of error without prejudice and may
well be overlooked.  Section 2, Rule 1;
Case, et al. vs. Jugo, 77 Phil. 517,
522.”

^[11]
Section 5, Rule 51, Revised Rules of Court.

^[12] Remonte vs. Bonto, supra.