MAURICIO GORDULAN, PLAINTIFF AND APPELLEE, VS. CESAREO GORDULAN, DEFENDANT AND APPELLANT.

This appeal, which was certified to this Court by the Court of
Appeals because only issues of law are raised, questions an order of
the Court of First Instance of Nueva Ecija denying defendant’s petition
for relief from a final judgment by default.

It is uncontested that in Civil Case No. 2488 of the court below, a
suit for the recovery of land, the defendant therein, Cesareo Gordulan,
although duly summoned, failed to file his answer in due time. Upon
motion of the plaintiff, the defendant was declared in default. After
reception of evidence for the plaintiff, the lower court rendered
judgment against defendant (now appellant). Availing himself of the
provisions of Rule 38 of the Rules of Court, the defendant Cesareo
Gordulan sought to set the judgment aside, claiming that he had good
and valid defenses against plaintiff’s complaint and that it was
excusable negligence on his part that his counsel failed to file an
answer.

His petition having been denied, the defendant interposed this appeal.

The questioned order should not be disturbed. Sections 2 and 3 of
Rule 38 of the Rules of Court are explicit, and require not only a
sworn statement of the facts constituting petitioner’s good and
substantial defense, but likewise a showing that the failure to file an
answer was by reason of fraud, accident, mistake or excusable
negligence. While appellant’s petition for relief contains a recital of
facts, duly sworn to by him, that the lot in dispute is owned in common
by the plaintiff and the defendant in equal shares, nothing is,
however, offered to show that there was fraud, mistake, accident or
excusable negligence in the failure of the lawyer to timely join issues
with the plaintiff.

The trial judge, Honorable Felix V. Makasiar, has correctly pointed out in the appealed order:

“Considering that the negligence of Atty. Antero
Toraas, as counsel for the defendant, in failing to file his answer to
the complaint within the reglamentary period is not excusable and,
therefore, not a ground for relief; that Atty. Antero Tomas has not
even submitted any affidavit with respect to his alleged negligence;
that the defendant had the duty to inquire from Atty. Tomas as to what
he did with the complaint or whether he filed his answer thereto or the
status of the case before the order of default on May 27, 1957, or
before the plaintiff presented his evidence on July 18, 1957 and could
have presented a motion to set aside the order of default prior to July
18, 1957 (See Taguinod, et a. vs. Mangantilao, 98 Phil., 1000; Robles, et al. vs. San Jose 99 Phil., 658; 52 Off. Gaz. 6183; Vivero vs.
Santos et al., 68 Phil., 500; 52 Off. Gaz. 1924); that the defendant
eould have easily inquired from the records as to the status of the
case inasmuch as his residence in Muñoz is only less than one hour by
bus from Cabanatuan City; and that his duty to make such an inquiry is
underscored by his claim that his harvest of palay of lh cayans from
the land for the agricultural year 1956-57 was attached by the
plaintiff’s mortgagee, the petition for relief is hereby denied.”

Rule 38 is a special remedy and the requirements therein set forth
are considered as conditions sine qua non to the proper allowance of
relief.

Neither is it arguable that defendant should not be held to suffer
for his counsel’s shortcomings, for a client is bound by the acts, even
by the mistakes and negligence, of his counsel in the realm of
procedural technique. Of course, the door is open for him to seek
redress against the paring lawyer for the wrong suffered (Isaac vs.
Mendoza, 89 Phil., 279).

Wherefore, the order appealed from is affirmed, with costs against appellant.

Bengzon, C. J., Padilla, Labrador, Concepcion. Paredes, and De Leon, JJ., concur.