G.R. No. L-3027. October 03, 1950
MARIA L. HERNANDEZ ET AL., PLAINTIFFS AND APPELLEES, VS. HILARION CLAPIS ET AL., DEFENDANTS AND APPELLANTS.
TUASON, J.:
The appellants were defendants in the justice of the peace court of
Tagum, Davao, in an action for forcible entry and unlawful detainer,
damages, etc., and lost, except as to damages which the Justice of the
Peace said had not been conclusively proved.
In due time, they filed a notice of appeal through Attorneys
Parreño, Parreño and Flores, their counsel in the justice of the
peace court who had their law offices in Bacolod City.
On the 18th of October, 1947, the above-mentioned attorneys received
from the clerk of the Court of First Instance notice of the receipt of
the record, and were reminded that the period for interposing a
demurrer, or an answer was to begin from the date of the receipt of
said notice. No answer or demurrer was filed.
On November 18, the date for which the case had been set for
hearing, Attorney Juan B. Espolong, signing as co-attorney of Emilio B.
Parreño, Geronimo R. Flores and Jose M. Kimpo, the first two of whom had
been defendants’ attorneys in the court of the justice of the peace,
filed a written motion to dismiss, alleging, among other grounds,
“that, after all, the right to the possession of the property in
question is to be determined by such agency of the Government : as has
been officially entrusted with the disposition of the same.” It was
stated in effect that the property in question was a so-called dummy
land and that the plaintiffs had no interest therein.
In view of the fact that the plaintiffs were furnished with a copy
of the above motion to dismiss only on the day the case was to be
heard, November 18, their attorneys moved for postponement of the
consideration of the said defendants1 motion, and the court reset it
for November 27.
On the latter date, the plaintiffs filed a written opposition to
the motion to dismiss and asked for continuance of the case on the
merits. The plaintiffs’ motion to continue the trial was there and then
granted.
On December 10, the court denied the defendants’ motion to dismiss
for want of merit. On the same date the attorneys for the plaintiffs
for the first time moved, orally, to adjudge the defendants in default
for failure to answer within the period prescribed by the Rules of
Court. This motion was found well founded and default judgment was
entered.
It is this order which is the subject matter of the present appeal.
Section 1 of Rule 9 and Section 7 of Rule 40 of the Rules of Court provide:
“Section 1 (Rule 9). Time and contents.—Within
fifteen days after services of summons the defendant shall file his
answer and serve a copy thereof upon the plaintiff. The answer shall
contain a concise statement of the ultimate facts on which he relies
for his defense.“Sec. 7 (Rule 40). Reproduction of complaint, on appeal.—Upon
the-docketing of the cause under appeal, the complaint filed in the
justice of the peace or municipal court shall be considered reproduced
in the court of first instance and it shall be the duty of the clerk of
the court to notify the parties of that fact by registered mail, and
the period for making an answer shall begin with the date of the
receipt of such notice by the defendant.”
The defendants and appellants impugn the validity of the notice
sent their attorneys in Bacolod City. They contend that such notice
should have been sent to the defendants themselves, who were right in
Davao. They argue that the attorneys who appeared for them in the
justice of the peace court should not have been presumed to be their
attorneys in the court of first instance, the justice of the peace
court not being a court of record. They point to Section 7 of Rule 40
which makes it “the duty of the clerk of court to notify the parties.”
They contend that although, ordinarily, notice to the attorneys is
notice to the parties, yet, it is said, that is true only where the
attorneys have entered their formal appearance in the court of first
instance personally or by their pleadings.
This contention is not well taken. We are of the opinion that
notice in this case was properly sent to the attorneys. The entry of
appeal by these attorneys from the justice of the peace to the court of
first instance was equivalent to the said attorneys’ appearance in the
higher court. This was in consonance with the spirit of Section 7 of
Rule 40, with forensic practice, and above all, with realities. They
were not only rightly presumed to continue to be attorneys of the
defendants but in fact did continue to be so.
It was Attorney Geronimo R. Flores of the Bacolod City law firm of
Parreño, Parreño and Flores who filed the answer in the justice of the
peace court, handled the defendants’ case and filed the appeal. After
the case was elevated on appeal he continued acting as counsel for the
defendants in the court of first instance, although in the latter court
Attorney Espolong of the law firm of Kimpo and Espolong in
collaboration with his law partner and with EmilioB. Parreño and
Geronimo R. Plores signed the pleadings alone. And on the front cover
of the brief for the defendants-appellants filed with the Supreme
Court, “Parreño and Flores” and Kimpo and Espolong” appear as attorneys
for the appellants although Attorney Espolong again signed the brief
alone.
In the face of these circumstances, the mailing of the notice to the
attorneys was not only correct but the proper thing to do. If the
notice had been sent to the defendants personally, these would have
good, practical reason to object that their attorneys were the right
persons to deal with; the defendants could well say they knew nothing
of court procedure. This precisely is one reason for the rule which
requires that notices of pleadings, decisions and orders should be
served on attorneys instead of their clients. And this was the very
ground of appeal by the same attorneys in a similar case which will be
stated more fully hereafter.
The defendants also submit that, as there was a pending motion to
dismiss, and as that motion was denied only on December 10, the period
of fifteen days within which demurrer or answer was to be filed
commenced to run on that date. The objection to this contention, to
mention only one, is that the motion to dismiss was itself filed way
beyond the 15-day period to file answer or demurrer. No pleading
registered out of time can suspend the running of a statutory period
that has ceased to run.
As a last resort it is insinuated that the filing by the plaintiffs
of an opposition to the defendants’ motion to dismiss was a waiver of
their right to ask for a judgment by default. This theory must be
overruled, mainly on the ground just stated—that the motion to dismiss
had no legal standing. Essentially analogous to this case is that of
Mapua vs. Mendoza, (45 Phil. 424), wherein the Court ruled
that, “While it is generally irregular to enter judgment by default
while a motion remains pending and undisposed of, yet, where such
motion is filed out of time, it would not be reversible error to enter
a judgment by default.”
It is clearly apparent that the whole trouble arose from
professional carelessness and negligence. How else can we characterize
the conduct of attorneys who, having conducted the case before the
justice of the peace, filed the appeal, and remained to be the
attorneys in the court of first instance, failed or refused to make the
necessary pleadings in the latter court on the tenuous grounds that
they and not their clients had been notified of the receipt of the
record, record which they themselves had caused to be sent up to the
higher court? The least that they should have done, as a measure of
protection to their clients, if they were thoroughly convinced that the
notice was missent, was to tell the clerk of court so.
But from the argument of defendants’ former attorneys in the case
before referred to, it does not look as if they were honestly convinced
of the soundness of the proposition they now sustain. In that case
(Gequiliana vs. Buenaventura, supra, p. 300),
recently decided by us, Attorneys Parreño, Parreño, Flares and Carreon
of Bacolod City, who we presume are the same attorneys, except Carreon,
who entered the appeal in the justice of the peace court in the case at
bar, stoutly advanced the opposite theory. These attorneys’ client,
also defendant, was notified by the clerk of court of the receipt of
the appeal filed by the plaintiff.. The said attorneys contended in
connection with their client’s failure to file answer in due time,
that the notice was wrongly mailed. In a vigorous brief they said,
among other things, “The inevitable conclusion is that under the
provision of the law on the subject, upon appeal from the Justice of
the Peace Court to the court of first instance, the pleadings filed by
the respective parties in the Justice of the Peace Court
should not be disregarded for they are the sane pleadings which should
be the basis of the cause of action and the basis of the defense of
both the plaintiff and the defendant, respectively.” They concluded
that in accordance with Section 2, Rule 27, “(the clerk of court)
should have directed the notification required by Sec. 7, Rule 40, of
the Rules of Court to the undersigned attorneys who are the attorneys
of record for the defendant, as service of the said notification to the
defendant, Felipe Buenaventura, in this particular case is not a
notification in law which will bind him with all its legal effects.” It
is an interesting contrast that the defendant in the
Gequiliana-Buenaventura case resided in the same province where the
attorneys had their lav; offices and so could easily have communicated
with them, whereas the defendants in the present case lived in Davao
and were six in numbers. Apropos of this, it is not shown that these
defendants did not live in scattered localities and that their
addresses could be verified from the record like that of their
attorneys.
There being no merit in, the appeal, the order of the lower court
will be affirmed, and in view of the circumstances hereinbefore set
forth, double costs of this appeal will be imposed, to be assessed
against Attorneys Parreño, Parreno and Flores Jointly and severally.
Moran, C.J., Ozaeta, Paras, Pablo, Bengzon, Montemayor, and Reyes, JJ., concur.