ANTONIO MONTEJO AND CONSOLACION BIBERA, PLAINTIFFS-APPELLANTS, VS. VICENTA UROTIA, AS HEIR OF JUANA BIBERA, ET AL., DEFENDANTS-APPELLEES.

These are appeals from
orders of dismissal for failure to prosecute. 
Inasmuch as the issues therein are substantially the same, these nine
(9) cases are herein decided jointly.

L-27187.  In their complaint, filed with
the Court of First Instance of Leyte, on July 2,
1962, plaintiffs Antonio Montejo and Consolacion Bibera seek:  a) to prevent the foreclosure of a mort­gage
on several parcels of land they claim to own in common with the defendants, as
well as on several personal properties allegedly belonging exclusively to
plaintiff Antonio Montejo; b) to have said parcels of
land partitioned among its co-owners; c) the release, from the aforementioned
mortgage, of the said personal proper­ties and of plaintiffs’ shares in said
land; and d) the collection of certain sums of money allegedly due from the
defendants to plaintiff Antonio Montejo.  There were 24 defendants under the original
complaint, which was amended to include 20 additional defendants.  Inasmuch as 17 defendants had not been summoned
as of September 27, 1963, said court then issued an order, inter alia,
directing the plaintiffs to exert efforts to cause said defendants to be
summoned.  Over two years later, or on October
25, 1965, the court
dismissed the case for failure of the plaintiffs to comply with said order.

L-29098.  This case, for the collection
of a sum of money^[1] from defendants Jose Arcellana
and the Capital Insurance & Surety Co., Inc.,^[2]
was initiated in the City Court of Manila, on April 20, 1966. 
Judgment for plaintiff People’s Car, Inc., having been rendered, on September 7, 1967, defendant Capital
Insurance & Surety Co., Inc., appealed to the Court of First Instance of
Manila.  On October 24, 1967, the latter issued a notice to the
parties, advis­ing them that the appealed case had then been docketed in said
court.  Counsel for the appellant
received, on December 18, 1967,
notice to the effect that a pre-trial would be held on January 4, 1968. 
He, however, failed to appear at said pre-trial.  Hence, the Court forth­with ordered the
appeal dismissed and the judgment appealed from revived, for failure to
prosecute on the part of said appellant.

L-29373.  In this action, commenced on October 28, 1965, for the recovery
of a sum of money^[3]
from defendants Isabelo Bandayrel
and Daniel Boquer, the latter was declared in
default, whereas Ban­dayrel and plaintiff Bolivar
submitted a written “stipulation of facts and compromise agreement,”
in pursuance of which, on June 21,
1966, the City Court of Manila rendered judgment for Bolivar.  On August
12, 1966, defendant Bandayrel
“appealed” to the Court of First Ins­tance of Manila, which
thereafter set the case for pre-trial on Feb­ruary 22, 1967. 
On motion of both parties, upon the ground that they were
“exploiting the feasibility of settling the case amicably,” the court
issued, on February 5, 1968, an order granting them up to Feb­ruary 29, 1968,
“within which to submit their amicable settlement or a negative
manifestation,” and, “in the event of the latter,” resetting the
case for hearing on April 8, 1968.  On
this date, both parties ap­peared before the court.  Upon inquiry by the same about the
“status of the amicable settlement, (c)ounsel for the plaintiff-appellee
mani­fested that the defendants have not submitted any proposed settlement
terms” and moved that the appeal be dismissed, which was granted
immediately.

L-29454.  This action was filed with the Court of First
Instance of Zamboanga, on October 11, 1960, to
restrain the defendants “from performing any and all acts which will tend
to prejudice” the alleged rights of plaintiff Pagadian
Iron Mines over a given iron lode claim in the barrio of Midsalip,
municipality of Liargao, Zamboanga
del Sur, as well as to recover damages.  After the issues were joined, the case was set
for trial on March 24, 1961.  This was cancelled on March 18, 1961, on motion of both parties, who
alleged that “there are negotia­tions for the amicable settlement” of
the case.  The same was several times,
thereafter, set for hearing, which was, just as often, post­poned, mostly upon
the same ground.  After thirteen (13)
such postponements, the case was, on September
8, 1966, set for hearing on December 8, 1966, which both parties moved again to be
postponed for the reason “that the parties are still exploring the
possibility of settling this case amicably.” Considering, however, that
the case had been pending for over six (6) years, the court ordered the case
dismissed “for failure to prosecute.” A reconsideration of this order
was later denied.

L-29542.  On August
28, 1963, Jose O. Maderazo brought this
action, in the Pasay City Court, to recover a sum of
money^[4]
from defendant Lim Lian Khoan
alias Khoan Limsico.  Said court having rendered judgment, on September 29, 1964, dismissing the
case, Maderazo appealed to the Court of First
Instance of Rizal, which, on November 13, 1964, notified the parties that
the appeal had been docketed with said court and that the period to file plead­ings
would commence from receipt of said notice. 
On October 30, 1965,
the case was ordered dismissed “(f)or failure to
prosecute for an unreasonable length of time.”

L-30711.  This action, instituted, on October 3, 1964, in the Municipal
Court of General Santos, Cotabato, is for the
recovery from Antonio Buhat of a sum of money lent to
him in 1946.  The case having been
dismissed upon the ground of pres­cription, plaintiff, Republic of the Philippines, appealed to the Court of First
Instance.  Both parties were, on August 8,
1966, notified that
the record of the case had been received by the latter court, which, on January
30, 1969, dismissed
it upon the ground of failure of the plaintiff to prosecute the same for an
unreasonable length of time.

L-30744.  In her complaint, filed, with the Court of
First Instance of South Cotabato, on July 19, 1967, plaintiff Nora D.
Santos seeks to recover, from defendant Aladino Taniongon, the possession of a parcel of land in Barrio Cebuano, Tupi, South Cotabato, as well as damages.  Defendant filed, on August 3, 1967, his answer with a counterclaim,
to which plaintiff replied, on August
14, 1967, with an answer to the counterclaim.  On January
23, 1969, the case was dismissed for failure to prosecute,
plaintiff having done nothing in the meantime.

L-30933.  The complaint for reconveyance
in this case, filed on October 5, 1960,
with the Court of First Instance of Zamboanga del Sur, having been dismissed for lack of cause of action,
plaintiffs Brigido Gudmalin
and Monica Sabijon filed, on March 31, 1962, their notice of appeal, appeal
bond and record on appeal.  When the
latter was considered for approval, on April
14, 1962, counsel for the defendants pointed out that its caption
did not set forth the full names of all parties.  Thereupon, the Judge who presided over the
court stated:  “(w)ith (that) modification, the court will approve the
record on appeal.” Plaintiffs claim to have later amended the same
“by inclusion of all parties in hand­writing duly initialed” in the
original Record on Appeal, on file in the Office of the Clerk of Court,
although without giving respond­ents the notice required in Section 7 of Rule
41 of the Rules of Court.  Over five (5)
years later, or on August 11, 1967,
the appeal was dismissed for failure of the plaintiffs to submit an amended
record on appeal, in accordance with said provision of the Rules of Court, or to apprise the defendants
and the court of the handwritten cor­rection made in the original record on
appeal.

L-31072.  This is a special civil action
for certiorari, prohibition and mandamus, filed, with the
Court of First Instance of Manila, on September 2, 1967, to annul and set aside
a decision of respondent Conrado F. Estrella, as Governor of the Land Authority, approving the
sale of a parcel of land in the District of Paco,
Manila, to private respondent Teodoro Nocon, after said lot had been allegedly sold to petitioner
Henry Olilang, and to re­quire said Governor Estrella to allocate the disputed land to Olilang.  On December 17, 1968, the court issued
an order setting the case for hearing on February
6, 1969, but, despite notice given to counsel for Olilang, he did not appear before the court on that
date.  Thereupon, the case was
dismissed.  On February 11, 1969,
Olilang’s counsel filed a motion for Relief or
Reconsideration upon the ground that, in making the memorandum of said hearing,
in his new pocket calendar, his office
secretary had erroneously made the corresponding entry in the space for February
11, 1969, instead of
February 6, 1969.  This motion was denied.

Section 3 of Rule 17 of
the present Rules of Court, which is a reproduction of Section 3 of Rule 30 of
the Rules of Court effect­ive July 1, 1940, reads:

“Failure to prosecute. – If
plaintiff fails to appear at the time of the trial, or to prosecute his action
for an unreasonable length of time, or to comply with these rules or any order
of the court, the action may be dismissed upon motion of the de­fendant or upon
the court’s own motion.  This dis­missal
shall have the effect of an adjudication upon the
merits, unless otherwise provided by court.”

Construing this provision, it was held in Smith Bell & Co. v.
American President Lines, Ltd.,^[5]
and this view was reiterated in subsequent cases,^[6]
that “x x x (t)he
dismissal of an action pursuant to this rule rests upon the sound discretion of
the court x x x.”

As to what constitutes an “unreasonable length of
time,” within the purview of the above-quoted provision, We have ruled
that it “depends upon the circumstances of each particular case,”
that “the sound discretion of the court” in the determination of said
question “will not be disturbed, in the absence of patent abuse”; and
that “the burden of showing abuse of judicial dis­cretion is upon
appellant since every presumption is in favor of the correctness of the court’s
action.”^[7]

Thus, this Court refused to disturb orders of dismissal for
failure of the plaintiffs to prosecute for a period of four (4) years,^[8]
about three (3) years,^[9]
over a year,^[10]
less than a year,^[11]
and even less than three (3) months,^[12]
as well as for failure of the plaintiffs
to comply, for less than two (2) months, with an order directing him to file a
bill of particulars.^[13]

Let us now examine the cases under consideration, in the light of
the foregoing precedents.

Plaintiffs-appellants in L-27187 assail the order of dismissal
appealed from upon the ground:  a) that
the duty to serve summons upon the defendants devolves upon the clerk of court,
not upon the plaintiffs; and 2) that service of summons by publication is not
feasible in this case.  The first ground
is clearly untenable.  We find no cogent
reason to depart from the position
taken in Smith Bell & Co. vs. American President Lines, in which this Court
ruled:

“The appellants contend that under sections 1, 2, and 3, of Rule
31, Rules of Court, it is the duty of the clerk of court and not of the
plaintiff to include a case in the trial calendar after the issues are joined
and that it is also the duty of the clerk of court and not the plaintiff to fix
the date for trial and to cause a notice to be served upon the parties.  But the duty imposed upon the clerk in these
sections of the Rules does not relieve the plaintiff of his own duty to
prosecute the case diligently, for the non-per­formance of that duty by
plaintiff is by section 3 of Rule 30 made an express ground for dismissing the
action.  If the clerk, therefore, in the
present cases had been negligent, it
was plaintiff’s duty to call the court’s attention to that fact so that the
administration of justice would not suffer delay.”

The second ground did not justify plaintiffs’ inaction for three
(3) years.  If there was no means of
summoning any of the defendants, plaintiffs should have so informed the court
and moved for their ex­clusion from the complaint, within a reasonable period
of time, so that the case could be disposed of one way or another, instead of
being left pending indefinitely, thus contributing to the clogging of our court
dockets.  Besides, plaintiffs could have
asked that the defendants be summoned by publication, pursuant to sections 16
and 17 of Rule 41 of the Rules of Court, the action being one for partition of
real properties in the Philippines.

Appellant in L-29098
alleges that the failure of his counsel to appear at the pre-trial, on January
4, 1968, was due to the fact that he then had to attend the trial of another
case; that he had filed, on Decem­ber 27, 1967, a motion for postponement of
said pre-trial upon such ground; and that, although the motion was denied on
December 29, 1967, notice of the order to this effect was not received by him
until January 12, 1968, or eight (8) days after the scheduled pre-trial.  These reasons are insufficient to warrant a
reversal of the order appealed from. 
Appellant was represented by the “Achacoso,
Ocampo and Simbulan”
Law Firm, on behalf of which Atty. Sabino P. Palomares, Jr. had appeared.  If Atty. Palomares
had another case set for trial on January 4, 1968, any of the three (3) members
of the law firm could have and should have appeared at the pre-trial of the
case at bar.  Moreover, in the absence of
an order granting said motion for postponement, appellant’s counsel was not
justified in assuming that the motion would be granted.

“The fact that the plaintiffs had filed a motion for
continuance x x x does not
entitle the plaintiffs to presume that their motion for continuance would be
granted.  Motions for postponement are
left to the sound discretion of the trial court and unless there be an abuse of such discretion this Court will not interfere
with the exercise of that discretion.  x x x.”^[14]

As regards L-29373, having been rendered pursuant to a com­promise
between plaintiff Bolivar and defendant Bandayrel,
who has not assailed the validity of said compromise, the judgment of the City
Court was not appealable.^[15]
Regardless of whether or not Bandayrel had failed to
exercise reasonable diligence in the prose­cution of his appeal, the same was,
therefore, dismissed properly.

Considering, with respect to L-29454, that from March 24, 1961,
when the case was set for trial, to December 8, 1966, when it was dismissed,
over five (5) years and eight (8) months had elapsed, during which plaintiff
had done nothing to prosecute the case, and that, in its order of March 17,
1964, the lower court had already warned the parties “that no further
postponement shall be granted,” it is clear that the order of dismissal
therein appealed from was fully justified.

Neither has appellant in L-29542 shown that there was a patent
abuse of discretion in dismissing the case for failure on his part, as
plaintiff therein, to prosecute it for over eleven (11) months, considering
that the subject matter of the litigation was a small sum of money^[16]
and that appellant’s claim therefor had been found by the city court to be
groundless.^[17]

In L-30711, both parties
were notified, on August 8, 1966, that the record of the appeal taken by the
plaintiff therein – from the judgment of dismissal rendered by
the municipal court of General Santos – had been received by the Court of First
Instance of Cota­bato.  Yet, up to January 30, 1969, when the case was ordered dismissed, or for
about two (2) years and a half, plaintiff-appellant had taken no step
whatsoever to prosecute its claim.  The
excuse given by counsel for the plaintiff is that he was waiting for the clerk
of the court of first instance to issue the proper notice of pre-trial, without
which the case would not be ready for trial. 
This excuse is untenable.  In the
language of the Smith Bell case:

“x x x.  (T)he duty
imposed upon the clerk x x x
does not relieve the plaintiff of his own duty to prosecute the case
diligently, for the non-per­formance of that duty by plaintiff is by section 3 of Rule 30 made an express ground for
dismissing the action.  If the clerk,
therefore, in the present cases had been negligent, it was plaintiff’s duty to
call the court’s attention to that fact so that the administration of justice
would not suffer delay.”

Similarly, the order of
dismissal for the inaction of plaintiff in L-30744, from August
14, 1967 – when she
filed her reply, with an answer to the defendant’s counterclaim – to January
23, 1969 – or for
over seventeen (17) months – when said order was issued – was, likewise,
justified.  Appellant’s argument to the
effect that the case was not ready for trial, no pre-trial having as yet been
held, is – for the reasons adverted to in relation to L-30711 – devoid of
merit.

So is the appeal in
L-30933, more than five (5) years having elapsed from the submission of
appellants’ record on appeal on April 14, 1962, to August 11, 1967, when the
appeal was dismissed.  Appellants
maintain that their duty to see to it that the record on appeal was transmitted
and certified to the appellate court starts only from its approval.  It is their duty as appellants to exercise
due diligence in the prosecution of their appeal.  Obviously, this duty includes that of
securing the approval of the record on appeal and its transmittal to the
appellate court.

Lastly, the mistake allegedly committed by the office secret­ary
of appellant’s counsel in L-31072, in making the entry for the hearing of the
case on February 6, 1969, in
the space for February 11, 1969,
in his new pocket calendar, is too flimsy to warrant a reversal of the order of
dismissal complained of, apart from being difficult to believe.  At any rate, the sworn statement of appellant
Olilang, attached, by way of affidavit of merit, to
his motion for relief, does not satisfy the requirements therefor,
it being no more than a general, abstract assertion of a conclusion that he has
“a valid and meritorious cause of action against the respondents”
therein, without any fact in support thereof.

WHEREFORE, the orders appealed from in each one of these
nine (9) cases are hereby affirmed, with costs against the respective
appellants, except appellant in L-30711, which is the Government.

IT IS SO ORDERED.

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

Makasiar, J., did not take part.

Barredo, J., concurs except on G.R. L-29542 as to which I reiterate my views in
Gonzales vs. Chua Keng Kian, G.R. No. L-26430, Mar. 11, 1969.

Dizon and Ruiz Castro, JJ., on leave.

^[1]
P1,737.50, with interest, plus 25% as attorney’s fees.

^[2]
For repairs made in Arcellana’s car
which was insured with the company.

^[3]
P4,872.59.

^[4]
A little over P3,000.

^[5]
94 Phil. 879, 880.

^[6]
Bautista v. Teodoro, 101
Phil. 701, 704; Montelibano v. Benares, 103 Phil. 106, 109; Flores v. Philippine Alien Property
Administrator, 107 Phil. 773, 778.

^[7]
Brandt v. Behn, Meyer & Co., 38 Phil. 351,
354; Masig­lat v. Mayor of Pasay
City, 104 Phil. 319, 322; Vernus-Sanciangco v.
Sanciangco, L-16219, April 28, 1962; Smith Bell &
Co. v. Ameri­can President Lines, Ltd., supra; Adorable v.
Bonifacio, L-10698, April 22, 1959; Flores v.
Philippine Alien Property Administrator, supra; Inter-Island Gas
Service, Inc. v. De la Cerna, L-17631, October
19, 1966.

^[8]
E. E. Elser, Inc. v. De la Rama
Steamship Co., 94 Phil. 812; Smith Bell & Co. v. American President
Lines, Ltd., supra; Adorable v. Bonifacio,
supra; Ventura v. Baysa, L-12960,
January 31, 1962.

^[9]
Inter-Island Gas Service, Inc. v. De la Cerna, supra.

^[10]
See Chuan v. De la Fuente, 90 Phil. 813, 815;
Ortega v. De Guzman, L-25758, February
18, 1967; Insurance Co. of North America v. Republic,
L-26794, November
15, 1967.

^[11]
Flores v.
Philippine Alien Property Administrator, supra, at pp. 777-778.

^[12]
Sunico v.
Villapando, 14 Phil. 352; Masiglat
v. Mayor of Pasay City, supra.

^[13]
Bautista v. Teodoro, supra.

^[14]
Montelibano v. Benares, supra, at p. 109.

^[15]
De los Reyes v. De Ugarte, 75 Phil. 505; Enriquez v. Padilla, 77 Phil.
373; Serrano v. Reyes, L-16153, Dec. 29, 1960.

^[16]
For services allegedly rendered by the plaintiff-appellant.

^[17]
No employer-employee relationship existed between the parties.  See Masiglat v.
Mayor of Pasay City, supra; Flores v.
Philippine Alien Property Administrator, supra.