G.R. No. L-22670. January 31, 1969
GUALBERTO V. MAGNO, PETITIONER, VS. HON. MONTANO A. ORTIZ, IN HIS CAPACITY AS JUDGE OF THE COURT OF FIRST INSTANCE OF AGUSAN, THE CLERK OF COURT, COURT OF FIRST INSTANCE OF AGUS…
MAKALINTAL, J.:
On October 31, 1963
judgment was rendered in favor of the plaintiff in Civil Case No. 410 of the
Court of First Instance of Agusan, entitled “Rogaciano Suazo, plaintiff versus
Director of Lands and Ines Buquingo
Vda. de Bacarro,
defendant’s, Gualberto V. Magno,
Intervenor“.
In said judgment plaintiff was declared owner of Lot No. 2987 of the
cadastral survey of Barrio Libertad, PLS-22, Butuan City, by virtue of a decision of the Cadastral Court
of Agusan way back on November 17, 1941. On December
12, 1963 intervenor Gualberto
V. Magno, who was claiming the same land as purchaser
from the defendant, received a copy of the judgment. On January 11 of the following year, or on
the thirtieth day from receipt of the copy, the intervenor
filed by registered mail with the court a quo a motion for
reconsideration. The said motion did not
contain a notice of hearing.
On January 27, 1964
respondent Judge motu
proprio caused to be served upon all parties
concerned a notice setting the motion for reconsideration for hearing on February 8, 1964. On the same day, January 27, respondent Rogaciano Suazo moved for the
issuance of a writ of execution of the decision on the ground that it has already
become final and executory since neither the defendants
nor the intervenor perfected an appeal within the reglementary period.
The motion for execution and the motion for reconsideration were heard
on February 1 and 8, 1964, respectively.
On March 3, 1964
respondent Rogaciano Suazo
filed an answer to petitioner’s motion for reconsideration. On March 9 following respondent Judge issued
an order, a copy of which was received by petitioner on March 17, denying the
motion for reconsideration and allowing the issuance of a writ of
execution. Upon receipt of said order
the intervenor (petitioner herein) filed a notice of
appeal, a cash appeal bond and a record on appeal.
On March 18, 1964
petitioner moved to reconsider that portion of the order dated March 17 which
allowed the issuance of a writ of execution.
The motion was denied in an order dated March 31, 1964.
Petitioner filed the instant petition for certiorari, alleging
that respondent Judge acted in excess of jurisdiction and with grave abuse of
discretion in declaring the decision in Civil Case No. 410 final and unappealable, in disregarding petitioner’s motion for
reconsideration, in ordering the issuance of a writ of execution and in denying
petitioner’s urgent motion for reconsideration of the order granting the motion
for execution; and praying that a writ of preliminary injunction be issued
restraining the respondents Clerk of Court and Provincial Sheriff of Agusan from proceeding with the execution of the judgment
in Civil Case No. 410, that the orders of respondent Judge dated March 9 and
March 31, 1964 be annulled and that respondent Judge be ordered by mandamus to
consider and approve petitioner’s record on appeal.
On April 18, 1964
We issued the writ of preliminary injunction prayed for, upon petitioner’s
postings surety bond in the amount of P1,000.00.
The issue decisive of this petition is whether or not
petitioner’s motion for reconsideration filed in the court a quo
without a notice of hearing, but concerning which a notice was subsequently
caused by the court itself to be served upon all parties concerned, suspended
the period for appeal.
Petitioner contends that respondent Judge gravely abused his
discretion in considering the subject motion for reconsideration a mere scrap of
paper, and that “what the law prohibits is not absence of previous notice
but the absolute absence thereof and lack of opportunity to be heard,”
citing Borja vs. Tan, G.R. No. L-6108,
May 25, 1953; Duran Embate vs. Penolio,
G.R. No. L-4942, September 23,
1953 and Sun Un Giok
vs. Matusa, et al., G.R. No. L-10304, May 31, 1957.
The cases relied upon by petitioner are not in point. In Borja vs. Tan,
the lower court appointed a co-administrator for the estate without previous
notice of hearing, thereby depriving the other interested parties of the
opportunity to express their objection.
This Court there held that the procedural defect was cured when the
interested parties presented their motion to reconsider the appointment. Indeed, the question involved was one of due
process, not the efficacy of a motion for reconsideration without a notice of
hearing. In Duran Embate
vs. Penolio, plaintiff’s counsel petitioned the clerk
of court to set his motion for contempt for hearing on a certain date, giving notice
thereof by registered nail to defendant’s counsel. On the date set for the hearing of the motion
neither defendant nor his counsel appeared, and the court issued an order
adverse to defendant. A motion to set
aside the order was seasonably filed by defendant on several grounds, one of
which was that the notice given to him was not sufficient and that a court
order setting the case for hearing should have been previously issued. It was held that it was not necessary that
the court itself order the motion to be set for hearing, as a prerequisite therefor, because the notice given by the moving party was
sufficient. And in Sun Un Giok vs. Matusa, et al., the
question revolved on whether the notice of hearing, incorporated in a motion
to dismiss and addressed to the clerk of court, requesting that said motion be
submitted for the “consideration of the Honorable Court and as soon as
thereafter as counsel can be heard”, and at the same time certifying that
a copy of the motion had been sent to counsel for the adverse party, was
sufficient compliance with sections 4 and 5 of Rule 26, (now Rule 15) of the
Rules of Court. This Court there held
that such notice was a substantial compliance with the requirement of the
Rules, for in virtue of said notice the hearing was actually set by the clerk
of court, of which counsel for the other party was notified. In the said case there was a notice of
hearing incorporated in the motion, whereas in the case at bar there was absolutely
no notice at all.
Petitioner also cites Inesin, et al.
vs. Canonoy, et al., G. R. No. L-13231, February 29, 1960. The pertinent facts therein are as
follows: Counsel for the defendants
received copy of the order of dismissal on October 7, 1955, and on October 31 they moved to reconsider
the said order. The motion for
reconsideration did not contain a notice of hearing, but on December 6, 1956 a motion was
presented asking the clerk of court to set the motion for reconsideration for
hearing on December 22. The motion was
opposed on the ground that it contained no notice of hearing and therefore
should be considered as a mere scrap of paper, which did not toll the running
of the period for the judgment to become final. Nevertheless, the court reconsidered and set
aside its order of dismissal. This
Court, in affirming the order of the lower court, stated:
“It is to be noted that the court of first instance holds its
sessions in Pagadian, Zamboanga
del Sur, only once a year on
the dates to be fixed by the district judge (sec. 151, Rev. Adm. Code,
superseded by Sec. 54 of Rep. Act No. 296).
As the sessions in Pagadian are not continuous
throughout the year, and since it is not shown that, at the time the
respondents herein presented the motion to reconsider the order of dismissal,
the Judge of the Court of First Instance had already set the date for the next
term, the attorney for the movant, respondent
herein, could not set the motion for hearing, not knowing on what date or in
what month the next yearly session in Pagadian was to
take place. It is true that the attorney
for the respondent could have set the motion for hearing, on the first day of
the term, asking the clerk of court to set it for hearing on that date, but the
failure to adopt such a step could not have meant negligence or neglect on the
part of the attorney for the movants for said
attorney had the alternative to set the motion for hearing as soon as the judge
has fixed the following term of the court in that municipality. Under the rules, which we have enjoined to be
interpreted liberally, and under the circumstances, we are not prepared to
declare that the said motion, which was accepted by the clerk of court was a mere scrap of paper. x x x“
As may be observed, these were special circumstances obtaining in
the case just cited which constituted the basis of the ruling therein, but
which are not present in the case at bar.
As correctly stated by the trial Court, the subject motion for
reconsideration was in fact a motion for new trial. The reasons relied upon are equivalent to an
assertion that the decision was contrary to law, which is a ground for new
trial (Rule 37, Section 1[c]). The
applicable rule on the matter, therefore, is Section 2 of Rule 37, construed in
relation to sections 4, 5 and 6 of Rule 15, which provide that a written notice
of a motion for new trial shall be served by the movant
on the adverse party, stating the time and place of the hearing thereof, and
that without proof of service of the notice the motion shall not be acted upon
by the court. These provisions have been
applied in the case of Manila Surety & Fidelity Co., Inc. vs. Batu Construction Co., et al., G.R. No. L-16636, June 24, 1965 and reiterated in
Fulton Insurance Co. vs. Manila Railroad Co., et al., G.R. No. L-24263, November 18, 1967.
As regards the notice of hearing caused to be issued by
respondent Judge, it is contended that it cured the defect of lack of notice.
Under the facts of this case, the contention is incorrect. In the first place, the duty to give such
notice devolves upon the movant, not upon the
court. In Fulton Insurance Co. vs.
Manila Railroad Co., et al., supra, it was pointed out categorically that
section 2 of Rule 37 repealed the provision of section 146 of the old Code of
Civil Procedure and the rulings founded thereon, to the effect that the notice
must be served by the court on the adverse party. Secondly, even granting that the court a
quo had authority to issue motu proprio the notice of hearing, such notice
nevertheless did not cure the defect of the motion for reconsideration. For while the motion was
filed on the thirtieth day from notice of the decision the notice of hearing
was only issued sixteen (16) days thereafter. Considering that a
defective motion for reconsideration does not toll the running of the period
for appeal, the decision in Civil Case No. 410 had already become final when
the notice of hearing was issued by respondent Judge.
In view of the foregoing considerations, we deem it
unnecessary to consider the other issues raised in the
petition. The writ prayed for is hereby
denied and the preliminary injunction issued in this case is lifted, with costs
against petitioner.
Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Sanchez, Castro,
Fernando, Capistrano, Teehankee, and Barredo, JJ., concur.