INTERNATIONAL HARVESTER MACLEOD, INC., PLAINTIFF-APPELLEE, VS. CO BAN LING & SONS CO., ET. AL., DEFENDANTS-APPELLANTS.

This is an appeal from the
order of August 15, 1966 of the Court of First Instance of Manila in
civil case 65385, dismissing the appeal of the defendants from the city court
for their failure to appear at the pre-trial.

On September
10, 1965 the
plaintiff International Harvester Macleod, Inc. filed a complaint in the city court
of Manila for the recovery of the sum of P2,500.
 The defendants’ answer of October
5, 1965 admitted
indebtedness, but denied the correctness of the amount demanded.

On April 14, 1966 the
case was tried on the merits, and judgment was forthwith rendered
ordering the defendants, jointly and
severally, to pay the plaintiff the sum of P2,500, with legal interest thereon
from June 1, 1965, until fully paid, the sum of P300 in the concept of
attorney’s fees, plus costs.  From this
decision the defendants appealed to the Court of First Instance.

In the Court a First Instance the defendants,
on July 9, 1966,
filed an ex parte motion to set the case for pre-trial.  The motion was granted, and the case was accordingly set for pre-trial
conference for August 15, 1966.  On this latter date, the
defendants-appellants did not appear, and instead filed an ex parte motion for postponement, upon the allegation
that their counsel, prior to receipt of notice of the date of the pre-trial
conference, had committed himself to appear in another case set for hearing in
Branch XXII of Manila on the very same day. 
Taking a dim view of this motion for postponement and regarding it as
one intended for delay, because it was filed on the last minute evident­ly to
compel the court to transfer the pre-trial, the defendants having received
notice of pre-trial a full month before, that is, on July 26, 1966, the court
denied the motion, dismissed the defendants’ appeal, and ordered remand of the
case to the city court for execution of the judgment.  Their motion for reconsideration was denied;
hence the present appeal, which poses this single issue:  Did the Court of First Instance err in
dismissing the appeal duly perfected by the defendants for the latter’s failure
to appear at the pre-trial?

The order of dismissal
must be affirmed.

The correctness of the
denial of the motion for postponement is not disputed.  It is the thesis of the defendants, however,
that the perfection of their appeal from the decision of the city court to the
Court of First Instance operated to vacate the judg­ment of the city court, and
the action thereafter stood for trial “de novo” upon the merits; that
when the CFI denied the motion to postpone the pre-trial, it should not have
dismissed the appeal but instead should have proceeded ex parte with the trial of the case, it being the duty
of the court to make its own findings of fact and render an appropriate
decision.

On the other hand, by way
of refutation, the plaintiff?appellee argues
that the defendants’ thesis is negated by section 9 of Rule 40 of the
Rules of Court the last sentence of which reads, “If the appeal is
withdrawn or dismissed for failure to prosecute, the judgment shall be deemed
revived and shall forthwith be re­manded to the justice of the peace or
municipal court for execu­tion.” The appellee
further argues that although the perfection of an appeal technically
operates to vacate the judgment appealed from, the dismissal of the appeal
before it is finally decided by the CFI does not result in the wiping out of
the appealed judgment, but on the contrary said judgment shall stand as if no
appeal had been taken.  Stated elsewise, the contention is that because the appeal was
dismissed by the CFI the judgment of the city court was revived and the case became remandable
to the latter court for execution of the judgment

The law conferring upon a
court of first instance discretion to dismiss a case for failure of a party to
appear at the pre-trial is found in sections 1 and 2 of Rule 20 of the Rules of Court, which inter alia, state:  “Pre-Trial Mandatory.  – In any action after the last pleading has been filed, the court shall
direct the parties and their attorneys to appear before it for conference to
consider:  (a) the possibility of an
amicable settlement or of submission to arbitration.  x x x Failure to appear at the pre-trial conference.  – A party who fails to appear at the pre-trial
may be non-suited or considered as in default.” This Court, interpreting
these provisions, has uniformly emphasized that pre-trial is man­datory, that
the parties as well as their counsel are required to appear thereat, and that
dismissal of the suit for non-appearance of the appellant at the pre-trial is
sanctioned by the Rules.^[1]

In the case at bar, when the defendants (who are the appellants
and who themselves moved for the scheduling of the pre-trial conference) failed
to appear at the pre-trial the Court of First Instance correctly dismissed
their appeal for failure to prosecute.  And since according to section 9,
Rule 40, of the Rules of Court
the judgment of the city court was thereby deemed revived, the case should
therefore forthwith be remanded to the city court for execution of the judgment
– which the Court of First Instance precisely ordered to be done.

ACCORDINGLY,
the order a quo is
affirmed, at defendants-appellants’ cost.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Sanchez,
Angeles, Fernando, and Capistrano, JJ., concur.

Zaldivar, J., on leave.

^[1]
American Insurance Co. vs. Republic of the Philippines, et al., L-25478,
October 23, 1967, 21 SCRA 464, 1967D PHILD 63; American Insurance Co. vs.
Manila Port Service, et al., L-27776, January 31, 1968, 22 SCRA 482, 1968A
PHILD 405; Home Insurance Co. vs. United States Lines Co., et al.,
L-25593, November 15, 1967, 21 SCRA 863, 1967D PHILD 400.