EUFEMIA RIVERA, ADMINISTRATRIX-APPELLEE, VS. MARIA CONCEPCION PAEZ VDA. DE CRUZ, CLAIMANT-APPELLANT.

This case was initiated
twenty years ago, on November 8, 1948, when Pedro B. Cruz presented a claim for P10,000.00, evidenced by two promissory notes, in Special
Proceedings No. 5990-R of the Court of First Instance of Manila for the settle­ment
of the estate of the deceased Romualdo Rivera.  The then administrator of the estate filed
his answer on November 29, 1948, alleging that “said claim was already the
object of an action before the
Court of First Instance of Rizal, entitled ‘Pedro B.
Cruz, v. Romualdo Rivera,’ which was
presumably dismissed upon petition of the plaintiff, herein claimant,” and
praying that the claim be dismissed. 
Except for several postponements of hearing in 1952, it seems
that no action was taken on the claim
until September 5, 1960 when the present administratrix filed a motion
to set the same anew for hearing.

On December
5, 1960 the administratrix moved to dismiss the claim on the ground that
it was barred
by prior judgment and by negligence or
laches, but the probate court sustained the
opposition of the claimant.  The administratrix moved to reconsider the order of denial, but
was again turned down.  In view thereof, she filed an amended answer with
special-defenses, set-offs and counter-claims. 
The probate court admitted the amended answer but dismissed the
counterclaims.

In an order dated June 20,
1961, the hearing of
the claim before the commissioner designated for that purpose was postponed to July 25,
1961 on motion of
the claimant without objection on the part of the administratrix.  However, on July 11, 1961 the claimant moved again for the
postponement of the hearing to either July 31 or August 1, 1961.  In
an order dated July 17, 1961 the motion was granted and the hearing was
rescheduled for August 1, 1961, at 9:00 o’clock in the morning, but on said
date neither claimant nor her counsel appeared when the claim was called for
hearing be­fore the commissioner. 
Consequently, the probate court in an order-issued on the same day
dismissed the claim on motion of the administratrix.

On August 18, 1961 the
claimant filed a verified petition for relief from the order of dismissal on
the ground that her failure or that of her counsel to attend the hearing on
August 1, 1961 was “due to accident, mistake and/or excusable negligence
as shown by the affidavit of Raul La Madrid”, which was attached to the
petition, and “induced by undersigned’s (counsel’s) anxiety upon knowing
around the end of July that his wife must have to undergo Caesarean section on
3 August 1961, making undersigned (counsel) completely forget to make a detailed
check of his trial dates before going to Vigan, Ilocos Sur to attend the hearing, x x  on 31 July 1961 x x.” In his affidavit La Madrid, a stenographer in counsel’s law office, alleged that upon
receipt on July 21, 1961 of the order of postponement dated July 17, 1961, and
before going on an urgent errand, he placed the order in the folder for incoming papers and
it was mixed with other incoming
papers of the office; that he was not able to refer immediately the order to
the lawyer in charge of the case, Atty. Raymundo A. Armovit, because the latter was then attending a court
hearing; that a few days thereafter,
he found the order in another folder and believing that it had already
been brought to the attention of Atty. Armovit, he filed it in its proper folder without calling the attention of said counsel to it; and that
it was not until late in the afternoon of August 1, 1961 that Atty. Armovit noticed for the first time that the hearing on the
claim was set for August 1, 1961.  Also
attached to the petition was an affidavit of Pedro Albea,
alleging in effect that the claimant had a good and substantial cause of action against the estate.

In an order dated October
11, 1961, the
probate court denied the petition for relief.  Thereupon the claimant went to the appellate
court on appeal from the orders of August 1 and October 11,
1961, respectively, alleging that the lower court erred in denying her petition
for relief from the order of dismissal notwithstanding (1) the satisfactory and
reasonable explanation for such non-appearance, based on the ground of accident
mistake and/or excusable negligence; and (2) the affidavit of merits amply
corroborated by the administratrix’s admission of the
genuiness of the promissory notes on which claim was
based.  The appeal was subsequently
certified to this Court for final determination because no question of fact is
involved.

The
first assignment of error is totally devoid of merit.  The explanation offered by appellant for her
failure and that of her counsel to attend the hearing on August 1, 1961, as stated in the affidavit of counsel’s
stenographer, is neither credible nor constitutive of “accident, mistake
and/or excusable negligence.” It is the duty of counsel to adopt and
strictly maintain a system that efficiently takes into account all court
notices sent to him and for want of diligent supervision the inexcusable
negligence of his clerk is imputable to him. 
^[1] In at least two
cases, ^[2] this Court has
held that such kind of excuse as has been presented here is “the most hackneyed and
habitual subterfuge employed by litigants who fail to observe the procedural
requirements prescribed by the Rules of Court.”

Neither
does the alleged forgetfulness of counsel to make a detailed check of his trial
dates due to anxiety constitute “accident, mistake or excusable
negligence.” In one case^[3] we held that mere
forgetfulness of a party to an action is not sufficient ground for
vacating or setting aside a
judgment by default.  Even assuming that
counsel’s stenographer failed to bring to his attention the order of July 17,
1961 and that he was suffering from anxiety about the end of July,
ordinary prudence demanded that he should have checked at least before the
scheduled hearing on July 25, 1961 what action had been taken on his motion
seeking postponement of said hearing to either July 31 or August 1, 1961. 
But evidently he did not make a follow-up of the said motion, such that
if the court had denied it, he would not have been present anyway at the hearing
scheduled for July 25 and the claim would have been dismissed even then.  Moreover, if he were really suffering from
anxiety as he alleged, it is strange that he was able to go as far as Vigan, Ilocos Sur,
to attend a hearing there an July 31, 1961, leaving his wife who was supposed
to undergo a Caesarian operation on August 3, 1961.  For the inexcusable negligence of counsel, his client has to
bear the adverse consequences.”^[4]

WHEREFORE, the orders dated August 1 and October
11, 1961 are hereby affirmed with costs against the appellant.

Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Sanchez, Castro and Capistrano, JJ., concur.

Fernando, J., took no part.

^[1]
Colcol vs.
Philippine Bank of Commerce, et al., G.
R. No. L-23117, Nov. 17, 1967.

^[2]
Philippine Air Lines vs. Arca,
G. R. No. L-22729, February 7, 1967; Ocampo vs. Calauag, No. L-21113,
April 27, 1967.

^[3]
Diriga vs.
Biranya, G. R. No. L-22033, July 30, 1966.

^[4]
Montes vs. Court of First Instance of Tayabas, 48 Phil. 640; Isaac vs. Mendoza, G. R No.
L-2820, June 21, 1951; Vivero vs. Santos, G. R. No.
L-8105, February 28, 1966; 52 O.G. p. 1424; Flores
vs. The Philippine Alien Property
Administrator, G. R. No. L-21741, April 28, 1960; Ocampo vs. Calauag,
supra.