LINO GUTIERREZ, PLAINTIFF AND APPELLEE, VS. LUCIANO L. MEDEL AND LUZ F. MEDEL, DEFENDANTS AND APPELLANTS.

Plaintiff Lino Gutierrez, on December 20, 1957, alleging repeated refusal and
failure to pay a loan of P10,000.00, which was due and demandable, instituted
with the CFI of Manila, a complaint with preliminary attachment, against
defendants Luciano L. Medel and Luz P. Medel, for the recovery of said amount,
together with 12% interest per annum from September 24, 1957, and attorney’s
fees in the sum of P1,500.00. The obligation is evidenced by a deed of second
real estate mortgage, with conditional assumption of pre-existing first mortgage
executed by the defendants in favor of the plaintiff.

Defendants filed their Answer on January 6, 1958, admitting the existence of
the loan and the deed of mortgage and interposed as their only defense, a verbal
extension until May 5, 1958, allegedly granted them by plaintiff, within which
to pay the indebtedness.

Upon motion of plaintiff, the case was set for hearing on February 4, 1958.
On January 30, 1958, counsel for defendant, Atty. Apolinario R. Billostas,
presented a motion for postponement of the scheduled hearing. The plaintiff did
not object and a new date was set, February 25, 1958. On said date, plaintiff
presented his evidence, oral and documentary, and rested his case. Atty.
Billostas asked for another continuance alleging that he was not prepared to
present his evidence. Trial was again set for March 28, 1958, for the reception
of defendants’ evidence.

On the March 28, 1958 hearing, and upon motion of defendants’ counsel, the
court a quo handed down an order of the following tenor—

“Upon verbal motion of defendants without objection from plaintiff, the
hearing of this case is postponed to May 16, 1958, at 8:30 a.m. for the last
time, with the understanding that if on said date defendants are not prepared to
present their evidence, the case will be considered submitted for
decision.”

On May 13, 1958, a new additional counsel, Atty. Arturo M. Tolentino, for
defendants, filed an Urgent Motion For Transfer of the May 16 hearing (4th
extension) claiming that “he has just been retained” and “he will appear in
Quezon City in case of ‘People vs. Jovita Lescano” (Estafa). The motion which
did not give the number of the case, the court and branch thereof, was signed by
Atty. Antonio Z. Galsim for Atty. Tolentino. When the case was called for
hearing on May 16, 1958, neither Atty. Tolentino, Atty. Galsim, Atty. Billostas,
the old counsel, or the defendants appeared in court. Counsel for plaintiff
objected to any further postponement and moved that the case be submitted for
decision on plaintiff’s evidence. Thereupon (same date), the trial court issued
the following order:—

“Counsel for plaintiff having verbally objected to the further postponement
of the trial of this case and moves that it be considered submitted for decision
on plaintiff’s evidence, defendants’ Urgent Motion For Transfer filed on May 13,
1958, is hereby denied, and let this case be submitted on plaintiffs’
evidence.”

No motion for reconsideration of the above Order was presented by defendants.
On July 12, 1958, 1% months after the promulgation of said order, the lower
court rendered judgment in favor of plaintiff, ordering the defendants to pay
him F10,000.00 with 12% interest per annum, from September 24, 1957, P500.00 as
attorney’s fees and the costs.

On August 15, 1958, ninety (90) days after the order of May 16, which
considered the case submitted for decision on plaintiff’s evidence, or more than
one (1) month after the rendition of the decision, defendants, for the first
time, presented a pleading designated as Motion for Reconsideration, but which
in effect was directed to the order of May 16, 1958, praying that the decision
be set aside and defendants be allowed to present their evidence. The motion was
opposed by plaintiff and on August 25, 1958, the lower court denied the same for
lack of merits.

The case is now before Us, defendants-appellants claiming that the lower
court erred in denying their motion for transfer, thus depriving them of their
day in court.

The only basis of defendants in claiming that they were not given their day
in court, is the denial of their fourth motion for postponement. The trial court
was most liberal and generous in granting them three (3) postponements. In one
of its orders granting continuance (March 28, 1958), the lower court made it
clear to the defendants that if on said date (May 16), they (defendants), were
not prepared to present their evidence, the case would be considered submitted
for decision. From March 28, 1958 to May 16, the defendants were afforded enough
time to engage the services of a new attorney, or to have Atty. Billostas
prepare their evidence. Sufficient warning was given them. They have now no
reason to complain.

“The defendants cannot be heard to say that because trial was not postponed
they were deprived of their day in court. No one deprived them of their day in
court. Of their own volition they preferred not to come to the Hearing on the
day set presumably assuming that their motion for continuance would be granted.
Defendants have no right to make such assumption, for continuance are granted
for good cause alleged and proved and not merely at the will of
either or both of the parties to the case.” (Cruz vs. Malabayasbas, et al., 105
Phil., 708).

Furthermore, since no resolution on the Urgent Motion to Transfer was issued
before the scheduled date of hearing (May 16), defendants or any of the three
lawyers, should, at least, have presented themselves in court and not merely
take for granted that their motion will be favorably entertained.

“And a party moving for postponement should be in court on the day set for
trial if the motion is not acted upon favorably before that day. He has no right
to rely either on the liberality of the court or on the generosity of the
adverse party (I Moran, Comments on Rules of Court, citing Macondary & Co.
vs. Paradies, G.R. No. 38255, Sept. 5, 1933, and Sunico vs. Villapando, 14
Phil., 352.)”

“But, an attorney retained in a case the trial of which is set for a date on
which he knows he cannot appear because of his engagement in another trial set
previously on the same date, has no right to presume that the court will
necessarily grant him continuance. The most ethical thing for him to do in such
a situation is to inform the prospective client of all the facts so that the
latter may retain another attorney. If the client, having full knowledge of all
the facts, still retain the attorney, he assumes the risk himself and cannot
complain of the consequences if the postponement is denied and finds himself
without attorney to represent him at the trial (I Moran, Comments on the Rules
of Court, 1952 Ed., p. 652, citing Linis vs. Rovira, 61 Phil.,
137)”.

Whether the additional counsel was appearing in another case or not, would
not have been a ground for postponement, since Atty. Billostas, the original
counsel, as far as the records is concerned, was still representing defendants.
He had not withdrawn from the case.

The repeated requests for continuance appear to be a delaying tactic. The
defendants have really no valid defense to offer. Having admitted the
indebtedness and the second mortgage, We fail to perceive how they could escape
liability. Of course, in their Answer, they allege that an extension (verbal)
was granted them to expire on May 5, 1958. But the record discloses that the
only extension given the defendants was up to September 23, 1957 (Exhibits D
& E).

Finding that the error assigned by defendants-appellants was not committed by
the court a quo, the decision appealed from, hereby is affirmed, with costs
against appellants, in both instances.

Bengzon, C. J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.
B. L., and Dizon, JJ., concur.