J. M. TUASON & CO., INC., PLAINTIFF-APPELLEE, VS. EMILIO DE LA ROSA, DEFENDANT-APPELLANT.

Suit against defendant “and all
persons claiming under him” to recover possession of a 500 square-meter portion
of a parcel of land described in plaintiff’s Transfer Certificate of Title No.
37686, Quezon City, and to compel defendant to remove
his house and other constructions therefrom, with
damages. ^[1]

Defendant’s answer, inter
alia, avers that he is “the rightful and lawful
owner and possessor of said land by virtue of lawful titles thereto”.

The trial, originally set for
February 1,
1961, was
transferred “to February 9,
1961, at
8:30 a.m.“, on defendant»s urgent notion
for postponement filed on January 31,
1961.

On the date and hour set for
trial – February 9,
1961,
8:30 a.m. – neither defendant nor his
counsel appeared. The court thereupon issued an order in open court delegating
the reception of plaintiff’s evidence to a commissioner, Paulino C. Santillan, Judicial
Reporter.

On the same day, February 9,
1961,
defendant urgently moved, in writing, to set aside the open court order of
delegation just mentioned, and to have the case set for hearing. His reason: He
did not arrive late in court.

On said day, February 9, 1961,
His Honor, Judge Nicasio Yatco, rendered judgment directing defendant to remove his
house and other constructions built on the land in question as well as those of
other persons claiming under him; to vacate the said premises and restore
possession thereof to plaintiff; to pay plaintiff P50.00 per month from January,
1952, until possession of the land shall have been delivered to plaintiff, and
to pay the costs.

On February 15,
1961, the
court denied defendant’s urgent motion for reconsideration of February 9.

On February 16,
1961,
defendant filed a motion to set aside the judgment. He there reiterated the
ground set forth in his previous urgent motion of February 9, pleaded mistake or
excusable negligence of counsel. But he did not allege facts constituting a
substantial defense on the merits.

On February 18,
1961, the
court denied the foregoing motion for the reason that it is not “in accordance
with the pertinent provisions of the Rules of Court”.

On February 23,
1961,
defendant sought reconsideration of the decision of February 9, and the orders
of February 15 and 18, all of 1961, aforesaid. He urged, amongst others, the
nullity of the delegation to take evidence aforestated.

On February 25,
1961, the
court denied the motion to reconsider just stated.

The Court of Appeals – to which
appeal was taken ^[2] – certified the case to
us.

1. It is beyond debate that on
February 9,
1961,
defendant’s counsel arrived in court late for trial. The Court of Appeals so
found. And not without reason. The lower court’s order
of February 15,
1961
denying defendants motion to reconsider the February 9 order, made of record this fact. Judge Yatco there stated that he opened the session at exactly
8:30 in the morning; that several other cases, criminal and civil, have been
called ahead of this case; but that neither defendant nor his counsel appeared
in court that counsel offered no explanation for lateness when he finally showed
up; and that then neither defendant nor any witness was with him. Obviously, he
was not ready for trial. And this, in spite of the fact that the trial was set
for that date, February 9, 1961, on his motion to postpone the original hearing
of February 1, 1961.

It is in this situation that we
are constrained to say that the court’s order of February 15,
1961
-denying plaintiff’s motion of February 9,
1961 to
reset the case for hearing – suffers from no infirmity at
all.

2. Defendant challenges the
legality of the court’s order authorizing the commissioner to receive evidence.
The commissioner merely took the evidence. Nothing
more. He exercised no discretion at all. The taking of evidence was but a
ministerial act. The all important function – rendition of judgment – was
directly and personally performed by the judge himself. We perceive no
Irregularity In this procedure. The judgment thus rendered is not null and void.
We have heretofore ruled that delegation to a commissioner to receive evidence –
“in view of the non-appearance of the defendants and their counsel” – is
sanctioned by Rule 34 (now Rule 33) of the Rules of Court.^[3]

3. At all events, if error it was
for the court to have delegated the reception of evidence to a commissioner,
such error is harmless.^[4] Because, the substantial
rights of defendant have not been impaired;^[5] the error was merely
procedural, not jurisdictional. So that, the proceedings below are not tainted
with nullity.^[6]

And then, no showing is offered
that if the evidence had actually been taken before the trial judge, instead of
before a commissioner, the judgment would have been different. Nor is it even as much as intimated that the commissioner so
appointed committed an irregularity, or, for that matter, an error in the
performance of his task. And, again, we say that the proceedings in the
trial court are valid.

4. Having reached the conclusion
that the proceedings below are not vitiated by nullity, the next problem that
crops up is whether defendant is entitled to an equitable relief from judgment.
The trial court’s order of denial of relief, dated February 18,
1961,
recites as ground thereof defendant’s failure to comply with the pertinent
provisions of the Rules of Court. Obviously, the court meant the lack of
affidavit of merits, a prerequisite under Section 2, Rule 37, Rules of Court. The lower court is correct. Defendant’s
answer to the com-plaint, it will be recalled, avers that he is “the rightful
and lawful owner and possessor” of the disputed property “by virtue of lawful
titles thereto”. It would have been an easy matter for him to write down under
oath what his titles really are, and recite the facts constituting legal
possession. He could even attach thereto his “lawful titles” and thereby
convince the court that in this legal fight, he had a leg on which to stand. An
affidavit containing such substantial defense becomes all the more important,
considering that his adversary’s (plaintiff’s) claim of ownership is planted
upon a Torrens title. Two motions – those of
February 16 and February 23,
1961 –
defendant lodged with the court in an effort to jettison the judgment below. In
neither did he show that if the judgment were set aside, a different result
could reasonably be expected.

It thus results that reversal of
the judgment and of the orders complained of would be an idle ceremony. It would
not advance or for that matter serve the ends of justice. It would only result
in another waste of time, effort and expense. Paraphrasing the language of this
Court in Paner vs. Yatco,
etc., et al.,^[7] it would be pointless to
reopen this case, “for like a mirage it would merely raise false hopes and in
the end avail her (him) nothing”. Except, of course, the
benefit of continued and prolonged possession of the disputed property to the
detriment of plaintiff’s rights thereto.

Upon the record, we vote to
affirm the appealed judgment and orders. Costs against
defendant.

SO
ORDERED.

Concepcion, Reyes, J. B. L., Dizon, Regala, Makalintal, Bengzon, J. P., Zaldivar and Ruiz Castro, JJ., concur.

Barrera, J., on
leave.

^[1] Civil Case No. Q-5430, Court of
First Instance of Rizal, Branch V,
Quezon
City, entitled “J.M. Tuason & Co., Inc., plaintiff, versus Emilio de la
Rosa,
defendant”.

^[2]
CA-G.R.
No. 29557-R. Matters subject of the appeal: Orders of February 9, 15, 18 and 25,
1961, and the judgment of February 9, 1961, Record on Appeal, p. 37.

^[3]
Province of Pangasinan vs. Palisoc, et al., G.R. No. G.R. No.
L-16519, October 30,
1962.
Also in point: Wack Wack
Golf and Country Club, Inc. vs. Court of Appeals et al., G.R. Nos. L-11724 and
L-11725, November 23,
1959. See
also: Wassmer vs. Velez, G.R. No. L-20089, December 26,
1964, where delegation was made in a
default case.

^[4] Section 3, Rule 53, 1940 Rules
of Court; Section 5, Rule 51, 1964 Rules of Court.

^[5] J. M. Tuason & Co., Inc., vs. Magdañgal, G.R. No. L-15539, January 30,
1962.

^[6] Joson,
et al., vs. Nable, etc., et al., 87 Phil. 337,
340.

^[7] 87 Phil, 271,
277.