G.R. No. L-15800. December 29, 1960
C.K. VASWANI, ETC., PLAINTIFF AND APPELLEE VS. P. TARACHAND BROS., DEFENDANT AND APPELLANT.
REYES, J.B.L., J.:
Tarachand Bros, in the Court of First Instance of Manila to recover the amount
of P2,160.00, the value of merchandise allegedly sold on thirty days’ credit and
delivered to defendant from June to November, 1956, plus legal interests and 25%
of the principal amount due as attorney’s fees. On January 21, 1958, defendant
answered the complaint, claiming that plaintiff had also purchased from it
various merchandise on an open account basis, the value of which amounts to no
less than plaintiff’s claim; and that before the accounting of the parties’
respective purchases from each other is completed, neither party has any valid
claim against the other. Defendant likewise counterclaimed for damages and
attorney’s fees.
Issues having been joined, trial was set for March 14, 1958. Two days before
the hearing, or on March 12, 1958, counsel for defendant moved to postpone the
trial on the ground that his client was in Legaspi City attending to some
important business transactions and would not be back until the end of the
month; and that furthermore, defendant had already submitted the case to the
Indian Chamber of Commerce in Manila for arbitration, as is customarily done by
Indian nationals in the Philippines. Having thus filed said motion, neither
defendant nor counsel appeared in court on March 14, 1958. In view of;
plaintiff’s vigorous opposition to the motion for postponement, however, the
court denied the same and forthwith received the evidence for the plaintiff. The
day following, March 15, 1958, the court promulgated its decision in the
case,
“ordering the defendant to pay to the plaintiff the sum of P2,160.00 with
interest at 1% per annum from December 9, 1956, thirty (30) days after the date
of the last invoice, up to the date of full payment, plus an amount equivalent
to 25% of the said sum of P2,160.00, and the costs of the
action.”
Notified of the judgment, defendant, on April 7, 1958, moved for a new trial,
claiming that its failure to attend the hearing was due to unavoidable
circumstances, namely, that partner C. Tarachand was delayed in Naga City and
Was not able to return to Manila in time for the hearing; and that defendant had
in its possession records that would off-set plaintiff’s claims. To the motion
was attached an affidavit of C. Tarachand attesting to the facts asserted in the
motion for new trial. Opposed by plaintiff as being pro forma and not
alleging sufficient grounds to constitute excusable mistake or negligence, the
motion was, on April 19, 1958, denied for lack of merit. Whereupon, on May 7,
1958, defendant filed a second motion for new trial, alleging for the first time
that the obligation sued upon had already been settled or paid; and attaching
thereto an affidavit of C. Tarachand swearing to such payment, as well ‘jas
copies of certain entries in defendant’s books of account supposedly showing the
payments made. Before this second motion for new trial could be acted upon,
however, defendant, on May 10, 1958, perfected an appeal to the Court of Appeals
from the decision in the case as well as the court’s order denying its first
motion for new trial. On July 27, 1958, the appeal was forwarded to as by the
Court of Appeals on the ground that it raises purely questions of law.
Appellant claims that the court a quo erred (1) in denying its
motion for postponement; (2) in denying its first and second motions for new
trial; (3) in rendering a void judgment; and (4) in finding appellants evidence
sufficient to justify the decision. We find no merit in all these claims.
As to the denial of appellant’s motion for postponement, it is settled that
such motions are addressed to the sound discretion of the court, which
discretion will not be interfered with unless it has been abused.[1] And equally settled is the rule that a
party moving for postponement must be in court on the day set for trial so that
if his motion is denied, he can proceed with the hearing, and that rhe has no
right to presume that his motion would be granted or to rely on the court’s
liberality or the generosity of the adverse party[2], especially on less than three cteys’
notice.[3]
We find no abuse of discretion in the lower court’s denial of appellant’s
motion to postpone. The parties had been notified of hearing as early as
February 3 1958, almost one and a half months before the date set; consequently,
appellant had more than ample time to adjust its business affairs so that any of
its representatives could be in court on the scheduled hearing. As its motion
for postponement reveals, partner C. Tarachand of the defendant firm was not
called to Legaspi City unexpectedly or for some urgent reason, it having been
alleged in the motion “that the defendant is now in Legaspi City attending on
some important business transaction and wouldn’t be back until the end of this
month” (R.A., p. 6). But even if Tarachand’s trip were unavoidable, counsel
should have been in court at the date of the hearing, considering that less than
three days’ notice of the motion for continuance was given to the adverse party.
Defendant having thus taken the risk of a denial of its motion to postpone, it
can not later be heard to complain that it was deprived of its day in court when
trial was had in its absence.
As for the allegation that defendant had already handed the case to. the
president of the Indian Chamber of Commerce in Manila for arbitration, we do not
think that the same, even if true, would have justified a continuance of the
trial of the case, considering that plaintiff does not appear to have agreed to
or concurred in the proposal to submit the case to arbitration. Besides,
appellant had all the time between the filing of the case and the day set for
the trial to propose arbitration by the Indian Chamber of Commerce if it really
wanted to settle the matter out of court. Article 2030 of the Civil Code does
not include offers to arbitrate but only refers to compromise, upon terms that
the Court can ascertain and determine if they are reasonable. A compromise could
dispense with a trial; but an arbitration would merely prolong the case, since
the arbiter’s decision would remain appealable to the Courts.
Neither do we see any error in the lower court’s denial of appellant’s first
and second motions for new trial. The first motion was correctly denied because
it was not supported by any affidavit of merit showing any valid defenses
appellant might have against the complaint that might change the result of the
case.[4] The general allegation in
Tarachand’s affidavit that he had records in his possession that would offset
plaintiff’s claim can not take the place of the affidavit of merit prescribed by
law, since it is required that such affidavit must state facts, not mere
conclusions or opinions, or it will not be considered valid.[5] As for Tarachand’s supposed excusable
failure to return to Manila in time for the trial, allegedly due to some
unavoidable and compelling reasons, the allegation is contradicted by
appellant’s own motion for postponement averring that Tarachand planned to stay
in Legaspi until the end of March, 1958; which shows that he had no intention
whatever to return earlier to Manila, much less on the day of the trial on March
14, 1958.
Appellant’s second motion for new trial was likewise rightly denied. In the
first place, the grounds alleged were already available to appellant at the time
of the filing of first motion for new trial, and consequently, such grounds are
deemed waived and can not be entertained in a second motion.[6] What is more, appellant, obviously
realizing that its second motion for new trial could not have interrupted the
period for appeal, perfected its appeal even before the lower court could act on
its second motion, thereby abandoning the same, since by the perfection of the
appeal, the trial court lost jurisdiction over its judgment and could no longer
vacate or modify the same.[7]
Appellant also claims that the judgment promulgated in its absence by the
court below is void because it was deprived of its day in court. It is only when
movant is deprived of his day in court through no fault or negligence on his
part, as when he is declared in default before his time to answer has expired,
that the judgment rendered in his absence would be considered void and a new
trial is demandable as of right.[8]
Appellant finally argues that the evidence presented by plaintiff does not
justify the judgment in his favor. We do not think so. That there is unpaid
merchandise obtained by appellant from plairitiff during the period from June to
November, 1956, is admitted in appellant’s answer, the only defense asserted
therein being that plaintiff also purchased from defendant various merchandise
on an open account basis, which were still unpaid for, and the value of which
would offset plaintiffs claim (par. 2, Answer, Rec. on App., p. 4). That
defendant still has an unpaid account with plaintiff is also supported by the
letters Exhibits C-1 and C-3 written by its counsel to plaintiff before this
action was filed, in answer to demands for payment by plaintiff’s counsel. If it
is true, as appellant now alleges, that it has already paid for all the.
merchandise sued upon by plaintiff, it would certainly have asserted. such
payment in the letter Exhibits C-1 to C-3, as well as in its answer to
plaintiff’s complaint. That the invoices Exhibits A, A-1 to A-4 presented by
plaintiff are unsigned, does not prove that they have been paid. Appellant’s
very failure to attach the originals to its first or second motion for new trial
disproves its daim that they had been surrendered to it by plaintiff because
they have already been paid.
Wherefore, the judgment appealed from is affirmed, with costs against
appellant P. Tarachand Bros.
Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion,
Barrera, Gutierrez David, Paredes, and Dizon, JJ., concur.
Judgment affirmed.
[1] Adan, et al. vs.
Pantalla, , 105 Phil., 921; Galanara vs. Gangcayco, 104 Phil., 418; 56
Off. Gaz., [13] 2799; Arcache vs. B. S. Chainani, 99 Phil., 170; 53
Off. Gaz., No. 1, 105; Salva vs. Palacio, 90 Phil., 731; 53 Off. Gaz.,
No. 10, 3089; I Moran, Comments on the Rules of Court, 1857 Ed., pp. 439-440.
[2] Wack Wack Golf & Country
Club,. Inc. vs. C. A., 106 Phil., 501;. 59 Off. Gaz., (34) 5501;
Montelibano vs. Benares, 103 Phil., 106; 54 Off. Gaz. (12) 3787; Parina
vs. Cabangbang, L-8398, March 21, 1956; Dimayuga vs. Dimayuga,
96 Phil., 859; 51 Off. Gaz., (5) 2397; Sarreal vs. Tan, 92 Phil., 689;
49 Off. Gaz., No. 2, 499; Siojo vs. Tecson, 88 Phil:, 531.
[3] Bautista vs. Mun. Council
of Mandaluyong, Rizal, 98 Phil., 409; 52 Off. Gaz., No. 2, 759.
[4] Sec. 2, Rule 37, Rules of Court; I
Moran, 1957 Ed., pp. 514-515 and authorities cited therein; Valdez vs.
Paras, 105 Phil., 698; 56 Off. Gaz. (38) 5875.
[5] Estrella vs. Zamora, 5
Phil., 415; Phil. Engineering Co. vs. Argosino, 49 Phil., 983; Coombs
vs. Santos, 24 Phil., 446; Cortes vs. Co Bun Kim, 90 Phil.,
167.
[6] Sec. 4, Rule 37; Moran,
supra, p. 518; Rili vs. Chunaco, 87 Phil., 545; 48 Off. Gaz.,
614; Mallare vs. Panahon, 98 Phil., 154; 52 Off. Gaz., 219; Ronquillo
vs. Rafael, 97 Phil., 38.
[7] Ayllon vs. Siojo, 26
Phil., 195; Gov’t. vs. Mendoza, 51 Phil., 403; Valdez vs. Ct.,
88 Phil., 585.
[8] I Moran, ibid, p. 515; Navarro
vs. Bello, 102 Phil., 1019; 54 Off. Gaz. (26) 6588; Gattoc vs.
Sarenas, 104 Phil., 221; 55 Off. Gaz., (30) 5763.