APOLINARIO VALERIO, PETITIONER, VS. BIENVENIDO A, TAN, JUDGE, COURT OF FIRST INSTANCE OF MANILA, SECRETARY OF AGRICULTURE AND NATURAL RESOURCES, DIRECTOR OF LANDS AND LUCERO DE …

Petitioner seeks to compel respondent Judge of the Court of First Instance of
Manila to certify the appeal of petitioner from an order of dismissal for
failure of plaintiff, petitioner herein, to appear at the trial. The trial was
set for August 3, 1954, at 1 o’clock p.m., but petitioner received notice of the
hearing only on August 2, at 3:40 p.m. At 5:55 o’clock that same afternoon of
August 2, he tiled a motion for postponement, alleging that he had another trial
on August 3 at Norzagaray, Bulacan and that he received notice of the hearing
only at 3:40 o’clock p.m. on August 2. The order of dismissal is dated August 3,
and makes no mention of petitioner’s motion for postponement.

Petitioner was served a copy of the order of dismissal on August 14, 1954,
and on August 17 he filed a motion for reconsideration, which he set for hearing
on August 21, 1954. This motion was. denied on that same day. Notice of this
denial was given petitioner on August 31, 1954. On September 23, 1954 he filed a
notice of appeal and on the following day he also filed an appeal bond and his
record on appeal. The following objections were registered against the appeal,
namely, that the motion for reconsideration is pro-forma and did not
stay the running of the period of appeal, and that the notice of appeal did not
mention the name of the court to which the appeal was being made. These
objections were sustained, so the appeal was denied. A motion to reconsider this
denial was also denied before this petition was tiled in this Court

There is no question that if the motion for reconsideration is not a
pro-forma motion, the appeal was perfected in time. Was the motion for
reconsideration to set aside the order of dismissal pro-forma and did
not suspend the running of the period of appeal? We have examined the motion and
find it to be replete with a statement of the facts and circumstances which made
it impossible for plaintiff to appear at the trial, the further fact that he was
denied his day in court, and decisions sustaining his petition for postponement
and his right to have the dismissal reconsidered. We hold that it is not a
pro-forma motion, and it therefore suspended the running of the period
for perfecting the appeal. The appeal was, therefore, perfected within the time
provided by the rules.

Neither is the failure of petitioner to mention in his notice of appeal the
court to which the appeal was being made fatal to the appeal. The rule requiring
a party to specify the court to which the appeal is being made is directory
merely. This is to be inferred from section 31 of Republic Act No. 296
(otherwise known as the Judiciary Act of 1948), which provides that the Supreme
Court or the Court of Appeals to which a case has been appealed, may certify
said case to the other court if it finds that the jurisdiction thereof pertains
to the latter. In other words, an error in the court to which an appeal is made
is not fatal to the appeal. So should failure to designate the court in the
notice of appeal.

One other point needs consideration, and this is the argument of respondents
that petitioner’s motion for reconsideration of the order of dismissal contains
no affidavit of merit attached thereto and that petitioner’s complaint is not
sufficient to serve the purpose of an affidavit of merit. The affidavit of merit
is a requirement for a new trial under Rule 37 or for vacating a judgment under
Rule 38. The judgment or order sought to be set aside under the above rules is
regular and valid insofar as the proceedings preparatory or prior to the
condition thereof are concerned. As the judgment or order is regular and valid,
it may only be set aside in the discretion of the court under two circumstances,
namely, that the judgment or order against the movant has been secured by reason
of fraud, accident, mistake or excusable negligence which ordinary prudence
could not have guarded against, and that he has been probably impaired in his
rights. This is the philosophy underlying the requirement of an affidavit of
merit.

Where, however, the movant has been deprived of his day in court through no
fault or negligence on his part and because no notice of hearing was furnished
him in advance so as to enable him to prepare for trial, the judgment or order
is absolutely null and void for denying him his day in court, a constitutional
right. In such case, the judgment or order suffers from an inherent procedural
defect and is absolutely null and void. Under such circumstances, no showing of
merits is necessary to support an application to have the order vacated (I
Freeman on Judgments, p. 559). This is the situation under which the case at bar
falls. There was no need of an affidavit of merit because the order of dismissal
was an apparent nullity.

The writ prayed for is hereby granted and the court a quo is ordered
to give course to the appeal. Costs against respondent Lucero de Guzman. So
ordered.

Bengzon, Acting C, J., Padilla, Montemayor, Reyes, A., Jugo, Bautista
Angelo, Concepcion and Reyes, J.B.L., JJ., concur.

Writ prayed for granted.