G.R. No. L-24922. January 02, 1968
MELECIO DOREGO AND FELICIDAD DOREGO, PETITIONERS, VS. ARISTON PEREZ, THE HONORABLE RAMON BLANCO, AS PRESIDING JUDGE, COURT OF FIRST INSTANCE OF ILOILO AND THE PROVINCIAL SHERIFF…
BENGZON, J.P., J.:
Respondent Ariston Perez was plaintiff
in Civil Case No. 5568, an action for foreclosure of real estate mortgage,
before the Court of First Instance of Iloilo.
On March 22, 1961,
judgment was rendered against defendants – now petitioners – Dorego spouses to pay respondent Perez the sum of
P1,000.00, plus 12% interest from May
25, 1959, and 25% of the total sum as attorney’s fees within 90
days from notification thereof or else the mortgaged properties would be sold
at public auction.[1]
Petitioners appealed to the Court of Appeals.
On September 23, 1961,
petitioners’ counsel filed a manifestation in the Court of Appeals withdrawing
their appeal on the allegation that the parties have already amicably settled
the case for P1,300.00.[2]
The Court of Appeals on September 29,
1961, issued a resolution requiring petitioners’ counsel to present
the written conformity of petitioners themselves to the withdrawal of the
appeal, and for them to pay the appeal docket fees first before their manifestation
would be acted upon.[3]
Apparently, the resolution was not complied with for on January 26, 1962, the Court of Appeals resolved
to dismiss the appeal for appellants’ failure to pay the docket fees.[4]
Upon the remand of the records to the court a quo,
respondent Perez moved for execution of its judgment. This was opposed by petitioners. On March
31, 1962, the lower court “disregarded” the opposition
filed since the Court of Appeals’ resolution dismissing the appeal did not
mention any amicable settlement and forthwith issued the writ of execution.[5]
Petitioners sought an urgent reconsideration of the order of March 31, 1962, annexing to their
motion a copy of the agreement between the attorneys for the parties mentioning
the amicable settlement between the latter.[6]
Respondent Perez opposed and was sustained by the lower court which, on July 6, 1963, denied petitioners’
motion, ruling that the agreement between the counsels was ineffective to
constitute a novation of the rights and obligations
of the parties themselves. It also
directed the provincial sheriff to proceed with the sale of the mortgaged
properties.[7]
Instead of appealing, petitioners instituted Civil Case No. 6369
before another branch of the Court of First Instance of Iloilo to annul the decision
in Civil Case No. 5568 and enjoin its execution. On September
24, 1964, the case was dismissed.[8]
Also dismissed subsequently was the attempted appeal by petitioners in Civil
Case No. 6369, for their failure to duly perfect the same.[9]
On July 8, 1965,
the lower court issued an alias writ of execution in Civil Case No. 5568. Accordingly, the mortgaged properties were
advertised by the provincial sheriff for public sale to be held on August 31, 1965.
On August 28, 1965,
petitioners instituted the instant petition for certiorari with preliminary injunction. We gave due course to it.
On August 31, 1965,
the mortgaged properties were sold at public auction to respondent Perez for
P2,000.00. The latter then sought to
confirm the sale. The petitioners counter-moved
to postpone the confirmation of the sale up to September 20, 1965 since they were “feverishly
looking for money with which to redeem the property.”[10]
The lower court postponed the confirmation of the sale up to October 11, 1965.
On October 12, 1965,
respondent Perez filed his answer to the petition.
The only issue here is whether the lower court gravely abused its
discretion or exceeded its jurisdiction in denying petitioners’ opposition to
the motion for execution by its order of March 31, 1962; in also denying the motion to reconsider
by its order of July 6, 1963,
and in allowing, thereafter, the execution of the decision rendered in
respondent’s favor.
Petitioners submit that since the decision of March 22, 1961 had already been novated by the amicable settlement between the parties
effected sometime in the second week of September, 1961, the same could no
longer be executed. The only – but
fatal – flaw in the argument is that petitioners have assumed what precisely
they had to establish in the first place, i.e., the fact of amicable
settlement. For, respondent denies it.
Petitioners could only fall back on the following documents
annexed in their motion to reconsider: (1) the manifestation their counsel
filed in the Court of Appeals on September
23, 1961; (2) the receipt signed by their counsel and one of
respondent’s counsels; and (3) the self-serving affidavits of petitioner Melecio Dorego and his
counsel.”[11]
Of the three, the strongest evidence would be the receipt, which is of the
following tenor:
“1. In view of the
fact that the case of Ariston Perez vs. Melecio Dorego, et al., has been
notified [sic] in the sum of P1,300.00 including attorney’s fees, Melecio Dorego has caused to be
withdrawn his appeal in the Court of Appeals by a manifestation dated September
23, 1961;
“2. That the attorneys or counsels for Ariston Perez have magnanimously foregone their attorney’s
fees as stated in the decision and in its place request for only P150.00.
“3. Receipt of P100.00 is acknowledged today, the
remainder shall be payable at the end of this month. Atty. Sixto Demaisip holds himself personally liable for the payment
thereof in the event of non-payment of Melecio Dorego.
“September 26, 1961.
“(Sgd) SIXTO P. DEMAISIP
(Sgd) ALFREDO LADRIDO”
But as the lower court noted, the above
receipt could only prove the personal agreement between the counsels. And respondent correctly points out that this
could not prove the oral amicable settlement between the parties since without
special authorization, counsels cannot compromise their client’s litigation.[12]
The special authorization of respondent’s counsel has not been shown.
Considering that there was no satisfactory proof of the alleged
amicable settlement between the parties and since the resolution of the Court
of Appeals plainly shows that the appeal was being dismissed for failure of
petitioners – who were the ones supposed to be interested in maintaining the
appeal – to pay the appeal docket fees, We cannot say that the lower court even
erred in granting respondent’s motion to execute the judgment which had become
final and executory.
Under the Rules of Court, the effect of dismissal or withdrawal of an
appeal is for the question judgment to stand as if no appeal had been
instituted.[13]
Execution, therefore, was proper.
WHEREFORE, the petition for certiorari is, as it is hereby, dismissed. Costs against petitioners.
SO ORDERED.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Ruiz Castro, Angeles, and Fernando, JJ., concur.
[1] Rollo, pp. 17-18.
[2] Rollo, p. 34.
[3] Rollo, p. 83.
[4] Rollo, p. 82.
[5] Rollo, pp. 22-23.
[6]
See infra, p. (3).
[7] Rollo, p. 41.
[8] Rollo, pp. 87-89.
[9] Rollo, pp. 90-91.
[10] Rollo, p. 94.
[11] Rollo, pp. 34-37.
[12]
Sec. 23, Rule 138, Rules of Court.
[13] Secs. 2 & 4, Rule 50, Rules of Court.