VALENTIN AVELINO, PETITIONER, VS. ATTY. PEDRO K. PALAÑA, RESPONDENT.

In a verified complaint filed by Valentin
Avelino against Atty. Pedro K. Palaña,
the latter was charged with malpractice in connection with his professional
conduct as the complainant’s counsel in Civil Case No. 2250 of the Court of
First Instance of Leyte, such malpractice having
given rise to the rendition of judgment against said com­plainant and his wife
ordering them:

“x x x to
restore the ownership and possession of the property described under paragraph
2 of the complaint to the
plaintiffs herein; to demolish or transfer the house they built in the land
within a pe­riod of three months counted from the re­ceipt of this decision at
the expiration of which, if they shall
fail to remove the house from the land in question, the plain­tiffs shall be
authorized to remove it at the expense of the defendants; to pay the plaintiffs
in the amount of (300.00) three hundred pesos for attorneys’ fees; for damages,
to pay the plaintiffs the amount of P1,800.00 which is the estimated
value of the produce of the land in question from 1951 up to the present year
which the plaintiffs failed to take advantage of due to their being
dispossessed of the aforementioned land; and, to pay the costs.  There being no adequate evidence to support
the claim for moral damages, no such damages are adjudged.”

Answering the complaint, the respondent admitted some of the
allegations thereof and denied the others, and, by way of affirmative defenses, alleged the following:

“x x x

2.  That the respondent was admitted a member of
the Philippine Bar in 1939 which is now a fifth of a century since his taking
his oath as attorney and counselor-at-law; he was appointed to the Judiciary as
Justice of the Peace Court of Palo, Province of Leyte,
in 1949, remaining as such until 1954 – the date when he resigned to continue his prac­tice of law; in 1957,
he (respondent) was again appointed as Justice of the Peace Court, this time in
his home town at Tolosa, Leyte;
remaining as such until he resigned in 1958 to accept the position as Assistant
Adminis­trative Officer in the Office of the Speaker of the House of Representatives,
Congress of the Philippines.  During all
the years that he was actively practicing his noble
profes­sion, he has never been nor will he in the future, be a renegade to this noble
profession.  In his actuations as a
Justice of the Peace Courts:  first at Palo, Leyte
then at Tolosa, Leyte,
his records are his eloquent proof of his being a missionary of justice;

3.  That it is true that the respondent was
engaged by the petitioner to be their counsel in the case entitled “FERMIN
NATIVIDAD, ET AL., versus VALENTIN AVELINO, ET AL.,” docketed as Civil
Case No. 2250 of the Court of First
Instance of Leyte where the petitioner is one
of the defendants;

4.  That the respondent verbally advised the
petitioner of the hearing of the afore-stated case on November 15, 1957, at
8:30 o’clock in the morning at least three
days be­fore the scheduled hearing
when the petition­ers called on the respondent
at the latter’s residence which the former were used to do as admitted by him in paragraph 4 of the com­plaint
as that is their understanding to enable them to confer;

5.  That when the scheduled hearing of the aforecited case on November 15, 1957, at 8:30 o’clock in
the morning arrived, the respondent failed to be present in court or appear thereat be­cause:  “at about 3:00
o’clock in the morning of that day, I had a severe stomach ache followed
by constant moving of bowel and vomitting.  As a consequence I became very weak and I felt that I was about to die,” as
shown by a medical cer­tificate which is attached to the “motion for new trial” filed by the respondent,
hereto attached as an integral
part here­of and marked as Annex “A”;

6.  That when the respondent received a copy of
the decision in the Court of First Instance of Leyte
entitled “Fermin Natividad,
et al., versus Valentin Avelino,
et al., he filed a “motion
for new trial” already marked as Annex “A” hereof, wherein the
respondent explained his failure to ap­pear on the date of the hearing of said
case on November 15, 1957, at 8:30 o’clock in the morning;

7.  That on January 18, 1958, the herein respondent filed an
“amended motion for new trial” where, in addition to the reasons recited by him in his motion for new
trial he stated that:

“x the evidence of the defendants in this case at bar
consisting of their adverse, continuous and
peace­ful possession of the property in question for almost twenty
years, payment of land taxes, fraud commit­ted in the part of the plaintiffs herein and estoppel
in the part of the plaintiffs are very strong; and that if the defendants are
given their day in court to present their evidence,
the findings and conclu­sions of the Honorable Court might be made in favor of the herein de­fendants and
adverse to the plaintiffs;”

or another way of
alleging that the defend­ants have a good and valid defense; said “amended motion for new trial is hereto at­tached
as Annex “B” and made an integral part hereof;

8.  That the failure of the defen­dants to appear
in court when their case was set for hearing on November 15, 1957, at 8:30
o’clock in the morning despite the verbal notice to them by the herein
respondent is not until the present known to herein respondent;

9.  That
when the herein respondent was appointed Administrative Officer in the Office
of the Speaker of the House of Representatives, Congress of the Philippines,
sometime in March 1958, he already advised the petitioner to look for another
lawyer to represent him.”

The issues having been thus joined, the case was referred to the
Office of the Solicitor General for investigation, report and recommendation.

Upon the evidence
presented by the parties the Solicitor General submitted his report, the
portion of which under the title “ANALYSIS” reads as follows:

“From the foregoing facts, this Office finds the respondent
guilty of negligence on the following counts:

1.  Atty. Palaña did not
duly inform his client of the date of the trial sched­uled for November 15, 1957 when the evi­dence
shows that he received notice of such hearing on October 11, 1957.

2.  The filing of the motion for new trial on January 7, 1958 was made out of time,
exactly 40 days after the decision was received on November 28, 1957.  The delay in the filing of the said motion
remains unexplained in the record.

3.  Atty. Palaña’s 2nd
motion for new trial, after the Court had afforded him all the opportunity to
plead his motion successfully, was denied by the lower court on the ground that
he failed to comply with an order of the court dated February 1, 1958.  While the said motion was duly filed on time, a previous order of the
Court directed the movant (Atty. Palaña)
to serve a copy of his amended motion to the other party through counsel, but
compliance therewith does not appear on
the said motion (Exh. 4).

The testimony of petitioner is not clear as to whether respondent
was responsible in hiring Atty. Aristidis de la Paz
to take over the case after the decision had become final.  However, we can allow such a doubt to be
resolved in favor of the respondent’s claim that he suggested to his client
that he contract Atty. De la Paz.

This Office believes that although petitioner had verified the
petition for relief from judgment dated March 18, 1958 filed by Atty. De la
Paz, petitioner here­in did not exactly comprehend, due to his patent
illiteracy, what he was signing in alleging excusable negligence on the part
of Atty. Palaña for failing to notify him and his
co-respondents in Civil Case No. 2250 of the date of the hearing.  Further­more, we are fully aware of the
practice that practicing attorneys usually prepare such petitions for their
clients to sign.

This Office however believes that the non-appearance of Atty. Palaña at the hear­ing of November 15, 1957 has been satisfac­torily explained by
the verified medical certificate.  But we
do not share the same view insofar as his negligence in failing to notify his
clients of the date of hear­ing is
concerned.”

On the basis of the findings contained in the above-quoted
portion of his report, the Solicitor General found the respondent “guilty
of negligence in the performance of his duties as a member of the Bar” and
consequently recommended “that he be suspended from the practice of law
for at least six months.”

Thereafter, following the procedure provided by the Rules of
Court in cases of the same nature, the Office of the Solicitor General filed
with this Court the corre­sponding complaint based on the findings of fact
contained in his report.  In respondent’s
answer thereto he repro­duced the defenses set forth in his answer to the
verified complaint filed by the complainant.

Thereafter, We set the case for hearing
but, in­stead of arguing the case orally, the respondent submit­ted a written
memorandum, while the Office of the Solic­itor General did not.

Upon consideration of the whole record, We find no sufficient
justification to reverse the finding made by the Office of the Solicitor
General to the effect that respondent “did not duly inform his client of
the date of the trial scheduled for November 15, 1957” in spite of the
fact that, according to the evidence, he had re­ceived notice of such hearing
four days before.

As regards respondents failure to appear in court on the day set
for the trial, We are inclined to accept his claim that it was due to the fact
that early in the morning of that date he had “a severe stomach ache,
followed by constant moving of bowel and vomitting
and that as a consequence he became very weak.” But while this might be,
to a certain extent, a good excuse for his non-appearance in court, it is
obviously not sufficient to explain his failure to notify his clients in due
time of the date of the trial.  Had he
done so, his clients would probably have tried to contact him in due time, and
upon discovering that he was sick they would have either gone to court to ask
for the postponement of the trial, or they would have looked for another lawyer
to represent them in court.

Then again We find no sufficient exculpatory evi­dence for respondent
filing a motion for new trial “out of time,” exactly forty days after
notice of the decision rendered by the court.  Moreover, although he was given an opportunity to file a second motion for new
trial, it appears that the same
was denied by the court “on the ground that he had failed to comply with
its previous order dated February 1, 1958.  In
this connection, We reproduce hereunder the pertinent
portion of the report submitted by the Solicitor General:

“x
x x

The said decision was received by Atty. Palaña
on November 28, 1957.  This is admitted by him in his second motion
for new trial (Exh. I).  Atty. Palaña
filed his motion for new trial dated
December 26, 1957 on January 7, 1958, 40 days after receipt of judgment
(Exh. C).  The motion for new trial was op­posed by the attorney for the
plaintiffs on the grounds:  (1) that the motion
for new trial is not the proper remedy; (2) that the motion was not accompanied
by affidavits or affidavits of merits (Exh. E).  An amended motion
for new trial was subsequently filed dated January 18, 1958, attaching thereto an affidavit executed by Atty. Palaña (Exh. F).  On the same date, January 18, 1958, the Court of First Instance of Tacloban City ordered the movant
“to serve a copy of his amended motion, if he so desires to amend his motion, to the other party through
counsel, Atty. Fernando Suddrio, not later than the
25th of January so that the latter may file a reply if he so desires.” On February 1, 1958, another order was
issued by the Court giving Atty. Palaña one week’s
time within which to present another amended motion for new trial (Exh. H).  A subsequent
amended motion for new trial was filed on February 8, 1958 (Exh. H).  The said motion for
new trial was however de­nied on the same date for “not having com­plied
with the order of this court dated February
1, 1958” (Exh. J).”

IN VIEW OF ALL THE FOREGOING, the respondent is hereby
found guilty as charged in the report and complaint filed by the Solicitor
General, and considering all the circumstances of the case, he is hereby
suspended from the practice of law for a period of three months from notice
hereof.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Fernando, Teehankee, Villamor, and Makasiar, JJ., concur.

Ruiz Castro and Barredo, JJ., took no part.