G.R. No. L-21399. January 31, 1964
VILLA-REY TRANSIT, INC., PETITIONER VS. HON. ELOY B. BELLO, FLORENTINA ASUNCION, THE PROVINCIAL SHERIFF OF PANGASINAN, ET AL., RESPONDENTS.
PAREDES, J.:
Order in Civil Case No. 14122, CFI of Pangasinan, entitled “Florentina
Asuncion, et al vs. Villa Rey Transit, Inc., et al.”,
declaring the defendant Villa Rey Transit, Inc., in default for failure
to file its Answer to the complaint within the reglementary period. On
September 23, 1961, a default judgment was rendered by respondent
judge, whereby it awarded to plaintiffs therein (now private-parties
respondents) the amount of P70,100.00 as damages, as a result of the
death of Felipe Tejada, husband and father of the private-parties
respondents. Execution of the default judgment was issued on September
26, 1961, upon ex-parte petition of the Tejadas, and the personal
properties of the transportation company were levied upon.
Under date of September 27, 1961, the Villa Rey Transit presented a
motion to “Lift Order of Default”, which was opposed by the
respondents. On September SO, 1961, a motion to lift the Order of
Execution was also filed, which motion was denied in open court on
October 2, 1961. On this same day, Villa Rey Transit, submitted a
Motion for New Trial or to Set Aside Judgment, requesting that same be
heard on October 5, 1961. Said motion was opposed by the respondents.
At the hearing on October 5, the respondent judge suggested to counsel
for petitioner,. to file a bond of P30,000.00 in order to stop the
projected sale of the properties levied upon. Petitioner did not do
anything about the court’s suggestion, for it had already elevated the
matter to this Court on a petition for Certiorari (G. R. No. L-18957),
on October 4, 1961, contesting the Order of Default, Judgment of
Default and Writ of Execution and praying for a preliminary writ of
injunction to stop the sale. This Court issued the injunction, but on
April 23, 1963, resolving the certiorari case, it held, among others,
the following:
“* * *. The respondent, in declaring petitioner in
default, found that it did not file a responsive pleading within the
period granted to it, and that the motion to dismiss, (which, by the
way, is not responsive pleading, Paestre & Carpio vs.
Jaurique, 50 Off. Gaz., 112), did not pertain to petitioner, but to the
defendants-incorporators. Granting, for purposes of argument, that
these findings are erroneous, still it is a legal truism that not
every error in the proceeding, or every erroneous conclusion of law or
of fact, is abuse of discretion (Gov’t vs. Judge of First
Instance, 34 Phil., 157). True, that petitioner had filed a motion to
lift order of default, and a motion for new trial and to set aside the
default judgment, but before they could be resolved, petitioner
had already brought the matter to this Court, on a petition for
Certiorari with Injunction, without giving the respondent court an
opportunity to pass upon said motions, which act renders the filing of
the present petition premature. Moreover, the trial court did not act
with abuse of discretion in issuing the orders complained of, for it
is clear that they are in accordance with the facts and circumstances
of record and the law on the subject.“Wherefore, the
petition should be, as it is hereby denied, for lack of merits. The
injunction issued is. dissolved, and costs taxed against herein
petitioner Villa-Rey Transit, Inc.”
On May 4, 1963, petitioner, claiming that the above decision
authorized the respondent Court, to take further cognizance of the
Motion for New Trial or to Set Aside Judgment which it presented on
October 2, 1961, he filed a “Motion to Reset Hearing of
Motion to Lift Order of Default and Motion for New Trial or to Set
Aside Judgment” requesting May 11, 1963 as the date of the hearing. On
May 11, 1963, the respondents opposed the Motions and instead
petitioned for the execution of the decision. One of the grounds
advanced by the respondents in their opposition is that the Motions
submitted on October 2, 1961 were deemed automatically abandoned, by
the presentation with this Court, of the Petition for Certiorari with
Preliminary Injunction on October 4, 1961 (G. R. No. L-18957). The
opposition and the petition for a writ of execution of the decision
were pet for hearing on May 23, 1963, on which date respondent Judge
handed down an order of the following tenor:
“Acting on the petition to execute, decision filed
by the plaintiffs, thru counsel, in the above-entitled case, it
appearing that the execution ordered by this Court on September 26,
1901. has been suspended because of the Writ of Preliminary Injunction
issued by the Honorable Supreme Court in the case of Villa-Rey Transit,
Inc., versus Honorable Eloy B. Bello, et al., G. R. No. L-18957, and it
appearing further that the Honorable Supreme Court had already decided
the above mentioned case on April 24, 1963, denying the petition for a
writ of certiorari and dissolving- the injunction heretofore issued,
and finally, it being already mandatory on the part of this Court to
re-issue a writ of execution, as prayed for, let a writ of execution
issue against the defendants and in favor of the plaintiffs of the
decision rendered by this Court on September 23, 1961.”
On May 24, the date the Motion to Reset, etc., was scheduled to be heard, the respondent Judge issued the following Order:
* * * * * * *
“After this Court had declared the defendant,
Villa-Rey Transit Incorporated in default and had rendered a decision
in favor of the plaintiffs in this case, the defendant, Villa-Rey
Transit Incorporated, filed the said motion to lift order of default
and motion for new trial or to set aside judgment was submitted, to
this Court of October 2, 1961, andi before this Court could resolve the
said motion, it received a writ of preliminary injunction issued by the
Honorable Supreme Court in G. R. No. L-18957, entitled “Villa-Rey
Transit” Incorporated vs. Hon. Eloy B. Bello, et al., respondents”, in
connection with a petition for certiorari filed with the Supreme Court
wherein, it is alleged among other things that this Court gravely
abused its discretion in declaring the defendant, Villa-Rey Transit
Incorporated, in default and rendering the judgment. Unfortunately, the
defendant, Villa-Rey Transit Incorporated and petitioner of the above
entitled case in the Supreme Court, lost by virtue of the decision
rendered in said case on April 23, 1963. In said decision, the Supreme
Court said among other things:‘However,
the trial court did not act with abuse of discretion in issuing the
orders complained of for it is clear that they are in accordance with
the facts and circumstances of record and the law on the subject.’“The
said defendant in going to the Supreme Court without waiting for the
resolution of this Court on its motion for new trial or to set aside
judgment has abandoned said motion; and after losing in said Court now
comes back to this Court to ask for relief. By filing a petition for
certiorari with the Supreme Court and consequently abandoning all its
motions before this Court, it comes now to this Court and asks that
this Court sets for hearing motions that have already been abandoned.“There being no motion to set aside or to reset, this Court denies the motion, dated May 24, 1963.”
Petitioner brought the above order to this Court in a petition for
Mandamus and Certiorari with Preliminary Injunction. An Injunctive writ
to stay the execution of the default judgment was issued on June 22,
1963.
In the petition at bar, Villa-Rey Transit contends that since this
Court had said in the decision in G. R. No. L-18957, that the filing of
the certiorari proceeding therein was premature, then the lower court
will have to pass or rule again, upon the Motion to Lift Order of
Default and the Motion for New Trial or to Set Aside Judgment; and that
in denying to set for hearing said motions, respondent judge has
gravely abused his discretion and unlawfully neglected to perform an
act or duty specially enjoined of him by law.
Under the facts obtaining in the ease at bar, we believe the
respondent judge did not abuse his discretion, much less gravely.
Respondent judge, in denying the motion to set for hearing the two (2)
motions which petitioner alleged to be pending with his court, said
that there were no motions to set aside or to re-set. In arriving at
this conclusion, respondent judge entertained the opinion that when
Villa Rey Transit filed the petition for certiorari with this Court on
October 2, 1961, without having waited the result or resolution of the
trial court on its motion to Lift Order of Default and Motion for New
Trial and/or to set aside judgment, which petitioner itself had asked
to be heard on October 5, 1961, it (Villa Rey Transit) was deemed to
have abandoned said motions and placed itself at the disposal of the
Supreme Court. Whether the procedure adopted by the petitioner
constituted an act of abandonment, does not seem to have much
importance in the determination of the case at bar. What we are called
upon to decide, is whether the respondent judge committed grave abuse
of discretion in issuing the orders complained of and whether mandamus
will lie.
We discern no abuse, much less a grave abuse of discretion in the
actuations of respondent judge. In our decision in G. R. No. L-18957,
we stated that the orders complained of therein were not issued in
excess of jurisdiction or with grave abuse of discretion, and that they
were legal and valid. It was not the intention of this Court, by saying
that the presentation of the certiorari was premature, to have the
respondent court, pass upon the same orders again after we have ruled
upon their legality and validity. Petitioner in filing case No.
L-18957, repeatedly mentioned, ahead of the hearing set to determine
the motions under consideration, simply wanted to gamble. Having lost,
in this move, the petitioner tried to ask the help of the court whose
resolution on the orders it refused to wait. Petitioner should not be
permitted to take two courses of action at one time, with the end in
view that if it loses in one, it still have the order. One cannot eat
his cake and have it too.
Furthermore, when respondent judge in the case at bar, refused to
set the hearing of the motions, there existed already a virtual denial
to lift the order of default or to grant the new trial and/or to set
aside judgment. The proper remedy would have been an appeal (I Moran’s
Comments on the Rules of Court, 1957 Ed. p. 485 and cases cited
therein). The actuations of a court, done in the valid exercise of
jurisdiction, like the case under consideration, even granting that it
committed and/or made erroneous conclusions of facts or of law, are not correctible by certiorari. If, as stated by the respondent court, there
is no motion to set aside or to re-set, to which we agree, it follows
that there was no right of petitioner which it was excluded from
exercising and there is no duty on the part of the respondent judge to
perform. Clearly enough, mandamus does not lie.
The main case was for damages, resulting from a breach of
contractual obligation of the petitioner as a transportation firm; and
its principal defense in that case was the supposed negligence of a
third paity, not the deceased husband and father of the private-parties
respondents, This being true, petitioner’s remedy should not be to
resist a valid execution, which has already been implemented by the
levying of petitioner’s personal properties, but to seek redress from
the third party, if and when the facts and circumstances of the case so
warrant.
In view hereof, the writ prayed for is denied; the orders complained
of should be, as it is hereby affirmed, and the writ of preliminary
injunction heretofore issued is dissolved; with costs against
petitioner, in both instances.
Bengzon, C. J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Barrera, Dizon, Regala and Makalintal, JJ., concur.