LUCRECIO DE GUZMAN AND ADELA DE LA CRUZ, PETITIONERS, VS. HONORABLE GAUDENCIO CLORIBEL, JUDGE OF MANILA COURT OF FIRST INSTANCE, VILFRAN TRANSPORTATION CO., NAME AND BUSINESS ST…

Original petition for certiorari,
mandamus and prohibition.

Petitioners, Lucrecio de Guzman and his
wife, Adela de la Cruz, are the parents of Eduardo de
Guzman, a newspaper vendor, 15 years of age, who died in Manila, on February 2,
1961, in consequence of injuries sustained when he was run over by a passenger
bus of respondent Vilfran Transportation Co. ?
hereinafter referred to as the Company — driven by respondent Artemio Aguilar y Mallari, as he
(Eduardo) fell or jumped from said vehicle, which he had boarded to sell
newspapers to its passengers, while in motion. 
Hence, the petitioners herein instituted, in the Court of First Instance
of Manila, the present case, to recover damages from said respondents.  A criminal action, for homicide through
reckless negligence, was also, filed against Aguilar.

On April 28, 1964,
respondents moved to dismiss the complaint herein, to which petitioners
countered with a motion, dated May 15,
1964, to declare the respondents in default, alleging that they had
been served with summons on April 12, so that the motion to dismiss was filed
one day after the expiration of the reglementary
period^[1] therefor.  On May 16, 1964, said court, presided
over by Hon. Gaudencio Cloribel,
Judge, issued an order declaring respondents in default and authorizing the
Clerk of Court to receive petitioner’s evidence.  Respondents sought a reconsideration of this
order, which was denied on June 1, 1964.

Soon after the presentation of petitioners’ evidence, or on
August 11, 1964, Judge Cloribel rendered judgment
sentencing respondents to pay damages in the aggregate sum of P70,000.00,
besides P8.00 daily, from February 2, 1961, until actual and complete payment,
plus P589.00, for medical and funeral expenses, P10,000.00, as attorney’ a
fees, and the costs.

Having received copy of this decision on August 17, 1964, respondents filed on August 28,
a “petition for relief from judgment,” praying for:

“1.  An order x x x setting aside the order of default and admitting the
answer attached herewith as Annex: ‘E’;

“2.  An order x x x setting aside the judgment dated August 11, 1964;

“3.  An order x x x allowing the defendants to at least cross-examine the
witnesses for the plaintiffs and to present evidence in their defense;

“4.  x x x such other relief just and equitable under the
premises;”

Petitioners, in turn, filed, on September 17, 1964, a motion for execution of the decision
of August 11, 1964,
alleging that respondents had not appealed therefrom,
although more than thirty (30) days had elapsed since notice thereof had been
served on them on August 17, 1964.  Petitioners had set this motion for hearing
on September 19, 1964, which was postponed, by Judge Cloribel,
first, to September 26, and then to October 3, 1964.  On October
2, 1964, petitioners filed an “urgent motion for immediate
resolution granting motion for execution.” This was followed, on October
3, 1964, by respondents’ “supplemental petition for relief from judgment
and opposition to the motion for execution,” reiterating the prayer in
their petition of August 28, 1964, and asking, in addition thereto, that
“the motion for execution dated September 17, 1964, be denied.”

On October 6, 1964,
Judge Cloribel issued an order denying said motion
for execution, granting respondents’ petition for relief from judgment, setting
aside his decision of August 11, admitting respondents’ answer and allowing the
Company to introduce its evidence.  On
October 16, petitioners moved for a reconsideration of said order of October 6,
but the motion was, on November 4,
1964 denied.

On April 24, 1965,
petitioners commenced the present action for certiorari, mandamus and
prohibition against respondents and Judge Cloribel.  Petitioners maintain that the latter had:

1)  Committed a grave abuse
of discretion: (a) in granting respondents’ petition for relief from judgment,
although petitioners herein had not been served with copy of said petition and
they had not been required to answer thereto; and (b) in requiring the
petitioners to serve copy of their motion for reconsideration upon the
respondents, despite the fact that the latter had been declared in default; and

2)  Neglected the performance
of a ministerial duty in refusing to issue a writ of execution despite the
circumstance that the decision of August
11, 1964 was immediately executory,
considering that respondents herein had been declared in default and had not
sought relief from the order declaring them in default.

Petitioners’ contention is, however, predicated upon a false
premise, for respondents had asked, in their petition of August 28, 1964, as
well as in their supplemental petition of October 3, 1964, not only that the
order of May 16, 1964, declaring them in default, be set aside, but, also, that
their answer, annexed to the first petition, be admitted.  Then again, on August 28, or eleven (11) days
after service of copy of the decision of August 11, 1964, and, hence, before
the same had become final and executory, respondents
had prayed in said petition of August 28, 1964 — and reiterated it in the
supplemental petition of October 3, 1964 — for an order setting aside said
decision, and allowing them to cross-examine the witnesses for the petitioner and
to present evidence in their defense. 
Although both petitions are entitled “petitions for relief from
judgment,” they were, in fact, motions for new trial, which suspended the
running of the period to appeal.^[2]
It was not necessary, therefore, that petitioners herein be required to answer
said petitions before Judge Cloribel could act
thereon.

In said petitions respondents alleged that, due to accident
and/or excusable negligence, notice of the order of June 1, 1964, denying the
reconsideration of the order of default, dated May 16, 1964, had been served
upon the receiving clerk in the office of respondent’s counsel; that said clerk
turned it over to the employee in charge of delivering correspondence to said
counsel; that, since it was then past closing time and everybody was preparing
to leave the office, said employee placed the notice inside a drawer; that the
next day, however, he fell sick and was unable to report for work until after a
week; , that, by this time, the employee had forgotten about the notice in
question; and that, having, subsequently, ceased to work with said counsel, the
latter had never actually received the notice of the order aforementioned.

Respondents further alleged in their aforementioned petitions
that summons and copy of petitioners’ complaint were served, not upon the
manager or owner of the company, but upon employee thereof, who placed it in
one of the drawers of his desk; that, several days later, said papers were
turned over to the traffic investigator of the company, for delivery to its
counsel; that when the traffic investigator inquired about the date of service
of summons, with the complaint, said employee stated that, to the best of his
recollection, it was April 13, 1964; and that, accordingly, this was the
information transmitted by the investigator to respondents’ counsel.

Affidavits of the employee who received the notice of the order
of June 1, 1964, and of the
aforementioned investigator, supporting the foregoing allegations, were
attached to the petition for relief.

It moreover appears that, in a decision rendered in the criminal
case against respondent Aguilar, it was held that the death of Eduardo de
Guzman had been due to an accident, which is not imputable to the negligence of
the accused.  Hence, one of the defenses
set up in respondents’ answer is that the present civil action is barred by the
decision in said criminal case.

Although petitioners intimate that they had not been served with
copy of respondents’ petition for relief from judgment, we note that they have
not made such allegation in their motion for reconsideration of October 16,
1964, and that there is, at the foot of said petition, a statement to the
effect that copy thereof had been furnished counsel for herein petitioners by
registered mail.  At any rate, in their
aforementioned motion for reconsideration, petitioners had an opportunity to
elucidate on all matters relevant to said petition for relief filed by
respondents herein.

For the rest, we are satisfied that Judge Cloribel
had, not only committed no abuse of discretion, but, also, exercised it wisely
in issuing his orders of October 6 and November 4, 1964.  Indeed, considering that the motion to
dismiss was late only one (1) day; that the aforementioned petition for relief
(or new trial) of respondents herein had been filed before the decision of
August 11 had become final and executory; that,
according to the decision in the criminal case, the death of Eduardo de Guzman
was not due to any negligence on the part of respondent Aguilar; and that the
damages awarded in the decision of August 11, 1964, amount, in effect, to
around P100,000.00, it is obvious to us that, in issuing his orders complained
of Judge Cloribel had promoted the ends of justice
and acted in consonance with the tenets of fair play.

Petitioners would seem to be under the impression that a judgment
rendered in default is immediately executory.  This is not true for, said judgment is appealable, although a motion to set, aside the order of
default, upon the ground of fraud, accident, error, or excusable neglect, was
necessary prior to 1964. 
Respondents’ petition for relief from judgment, dated August 28, 1964, was to that
effect.  Since January 1, 1964, when the present Rules of Court
became effective, even said motion to set aside the order of default has been
dispensed with by explicit provision of the last paragraph of Section 2, Rule
41, of said Rules.^[3]

WHEREFORE, the petition herein should be, as it is hereby
dismissed, and the writs prayed for denied.

IT IS SO ORDERED.

Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Ruiz Castro, Angeles, and Fernando, JJ., concur.

^[1]
15 days.

^[2] See
Section 1, Rule 37, Rules of Court.

^[3] Antonio
v. Jacinto, L-18569, June 22, 1965.