REMEDIOS CUENCO VDA. DE BORROMEO, PETITIONER VS. THE COURT OF APPEALS AND TOMAS L. BORROMEO, RESPONDENTS.

Remedios Cuenco Borromeo, as administratrix of the estate of the late Teofilo
Borromeo, brought an action against Tomas L. Borromeo in the Court of First
Instance of Cebu praying for accounting, liquidation and payment of her late
husband’s share in the proceeds of the war damage claim paid to and received by
the defendant as his attorney-in-fact and of the sum of P17,100 as moral and
actual damages and attorney’s fees (Civil No. R-5031, Annex A, C.A.-G.R. No.
22136-R). The defendant answered the complaint denying the plaintiff’s claim and
averring that such share has been fully paid to Teofilo Borromeo (Annex B,
C.A.—G. R. No. 22136-R). Aside from this case, there were pending in the same
Court Civil No. R-3808, entitled “Estate of Vito Borromeo vs. Tomas
Borromeo.” and special proceedings No. R-916, entitled “Testate Estate of Vito
Borromeo.” For the convenience of Attorney Crispin D. Baizas, counsel for Tomas
L. Borromeo in Civil No. R. 5031 and special proceedings No. R-916 who resided
and had his law office in Manila, by agreement of the parties the hearing of the
case and special proceedings was set by the Court to enable Attorney Baizas to
be in Cebu City on consecutive days. The hearing of Civil No. R-5031 was set for
9 July 1957 and of special proceedings No. R—916 for 10, 11 and 12 July 1957. On
8 July 1957 Attorney Baizas received by mail a copy of an urgent motion dated 5
July 1957 of the Solicitor General, who represented the Government in the
special proceedings, praying for postponement of the hearing set for 10, 11 and
12 July 1957 (Annex C, C.A.-G.R, No. 22136-R). Attorney Baizas, who had
previously made reservation with the Philippine Air Lines to fly to Cebu City,
cancelled his reservation and wired Attorney Filiberto Leonardo (who was
collaborating with him in handling the cases) in Cebu City, requesting him to
ask for postponement of the hearing of Civil No. R-5031, which he referred to in
the telegram as the “Cuenco Case,” or, should the Court deny his request, to
appear in his behalf at the trial of the case. On 9 July, Attorney Leonardo,
believing that the “Cuenco Case” referred to by Attorney Baizas in his telegram
was Civil No. R-8808, proceeded to the Court presided over by Hon. Edmundo
Piccio but after reading the court calendar found that Civil No. R-3808 was not
set for hearing on that day. So he went home. For that reason, when Civil No.
R-5031 was called for hearing at the Court presided over by Hon. Jose S.
Rodriguez, neither the defendant Tomas L. Borromeo nor his counsel appeared, and
the plaintiff Remedios Cuenco Borromeo was allowed to present her evidence. On
11 July 1957 the Court rendered judgment for the plaintiff and against the
defendant, copy of which was received by counsel for the defendant on 2 August
1957 (Annex B, C.A.-G.R. No. 22136). On 29 August 1957 the defendant filed a
verified motion for new trial, dated 26 August 1957, on the ground of mistake or
excusable neglect, supported by affidavits of merit attached thereto (Annexes B,
E-1 and E-2, C.A.-G.R. No. 22136). On 13 September 1957, the Court denied the
defendant’s motion for new trial (Annex F, C.A.-G.R. No. 22136), copy of which
was received by counsel for the defendant on 23 September 1957. On 17 October
1957, or 24 days after-receipt of a copy of the order denying his motion for new
trial, the defendant perfected his appeal from the last mentioned order. In a
motion dated 21 October 1957, copy of which counsel for the defendant received
on 26 October 1957, the plaintiff prayed for the dismissal of the appeal on the
ground that it was filed beyond the regle-mentary period (Annex H, C.A.-G.R. No.
22136). On 29 October 1957 the defendant filed an objection thereto stating that
he was appealing from the order dated 13 September 1957 denying his motion for
new trial, and not from the judgment dated 11 July 1957 (Annex I, C.A.-G.R. No.
22136). The Court set the hearing of the plaintiff’s motion to dismiss on 26
October 1957 and thereafter on the same day entered an order as follows:

Finding the motion of counsel for the plaintiff dated October 21, 1957, well
founded, it appearing that the appeal filed by the defendant was presented
outside of the 30 day period for appeal, it was filed after 44th day as shown by
the records, as prayed for, the appeal filed by the defendant is hereby
Dismissed (Annex J, C. A.—G.R. No. 22136).

On 6 November 1957 the defendant moved for reconsideration of the foregoing
order, reiterating that his appeal was from the order dated 13 September 1957
denying his motion for new trial and not from the judgment dated 11 July 1957
(Annex K, C.A.-G.R. No. 22136) ; the plaintiff, an objection thereto (Annex L,
C.A.-G.R. No. 22136). On 2 December 1957 the defendant received a copy of an
order dated 25 November 1957 denying his motion for reconsideration (Annex M,
C.A.-G.R. No. 22136); on 23 December 1959 the defendant filed a petition for a
writ of certiorari in the Court of Appeals praying that after hearing the order
dated 26 October 1957 dismissing his appeal from the denial of his motion for
new trial be set aside. (C.A.-G.R. No. 22136). He also prayed that after filing
the requisite bond, a writ of preliminary injunction be issued enjoining the
respondent court from issuing a writ of execution of the judgment rendered in
Civil No. R-5031. After he had posted a bond in the sum of P1,000, the Court of
Appeals issued the writ of preliminary injunction prayed for. On 28 February
1958 the Court of Appeals rendered judgment, the dispositive part of which
is:

In VIEW OF THE FOREGOING, the judgment rendered in Civil Case No. 5031, is
set aside, and the respondent judge should be, as he is hereby ordered, to grant
the new trial prayed for and permit the petitioner to present such evidence as
may be lawfully warranted and relevant in the premises. The injunction issued
heretofore, is made permanent, without special pronouncement as to
costs.

The herein respondent, petitioner in the Court of Appeals, insists that he is
appealing from the order dated 13 September 1957, denying his motion for new
trial and not from the judgment dated 11 July 1957.

Taking into consideration the facts set forth in the motion for new trial
supported by affidavits attached thereto and the answer filed by the herein
respondent Tomas L. Borromeo in the Court of First Instance of Cebu where he
denies the claim of the herein petitioner, plaintiff in the said Court, and
avers that the claim for war damage of the late Teofilo Borromeo, husband of the
herein petitioner, has been fully paid to him, said motion may be deemed one
filed under Rule 38, of the Rules of Court. A denial thereof is final and
appealable. The period for taking an appeal from a denial of a motion praying
for the setting aside of a judgment or order rendered or entered against a party
through fraud, accident, mistake, or excusable negligence is thirty days from
the receipt of a copy of such judgment or order. Indeed, it would be futile to
appeal from the judgment sought to be set aside by a motion for relief under
Rule 38, because the aggrieved party would have no evidence upon which to rely
to secure a reversal of the judgment sought to be set aside by a motion for
relief under Rule 38, unless he would rely for its reversal on insufficiency or
perhaps inherent improbability of the evidence presented by the winning party.
The appeal by the herein respondent Tomas L. Borromeo from the order denying his
motion for relief had been taken within the reglementary period and should have
been allowed.

The judgment rendered by the Court of Appeals under review granting the writ
prayed for by the herein respondent Tomas L. Borromeo should be, as it is
hereby, affirmed, with costs against the herein petitioner Remedios Cuenco Vda,
de Borromeo.

Paras, C.J., Bengzon, Bautista Angelo, Labrador, Concepcion, Reyes,
J.B.L., Barrera, Gutierrez David, Paredes, and Dizon, JJ.,
concur.

Decision affirmed.