LUCIANO A. SAULOG, PLAINTIFF-APPELLEE, VS. CUSTOMBUILT MANUFACTURING CORPORATION, ET AL., DEFENDANTS, CUSTOMBUILT MANUFACTURING CORPORATION, DEFENDANT-APPELLANT.

The question shaped out by this case is the propriety of the
trial court’s denial of defendant’s petition for relief from judgment.^[1]

On September 12, 1961,
plaintiff Luciano A. Saulog
sued in the City Court of Manila for damages and attorneys’ fees against
defendants Custombuilt Manufacturing Corporation (Custombuilt), Northwest Insurance & Surety Co., Inc.
(Northwest), and the City Sheriff of Manila.^[2]
Plaintiff complained that Custombuilt caused to be
sold on execution certain properties belonging to him which he leased to one
Adriano Go, Custombuilt’s judgment debtor in another
case.^[3]
Those properties consisted of a piano with a stool, and a rattan dinner and sala set.  Plaintiff
filed a third-party claim thereon to stave off levy.  But Custombuilt
posted a P1,200-bond issued by Northwest in favor of
the City Sheriff.  This paved the way for
the execution sale of said properties on July 29, 1961.  The
prayer in plaintiff’s complaint:  For the
three defendants to pay, jointly and severally, P1,200;
against Custombuilt, for P1,000 as actual and moral
damages and P500 as attorneys’ fees; and against all of them, the costs of
suit.

On March 3, 1962, the City Court of Manila rendered judgment on
plaintiff’s evidence introduced ex–parte
against Custombuilt, the City Sheriff, and the
defaulting Northwest – all of whom failed to appear on the date set for the
trial despite due notice.  The city
court’s judgment directed defendants, jointly and severally, to pay plaintiff
the sum of P1,200 plus P100 for attorneys’ fees, and
the costs.

Custombuilt appealed to the Court of
First Instance of Manila,^[4]
substantially reiterated its answer in the inferior court.  Defendant Sheriff reproduced his answer.

On November 5, 1964,
pre-trial was had.  Custombuilt’s
counsel was in the courtroom that day, but left before the case was
called.  On plaintiff’s motion, the
judge, on the same day, dismissed the appeal and revived the city court’s
judgment, without costs.

Copy of this order was received by Custombuilt’s
counsel on November 10.  On November 14,
he filed a petition for relief.  On
November 19, plaintiff opposed.  On
November 27, the court below denied the petition for lack of merit.  Custombuilt
appealed.

The city court’s judgment as revived by the Court of First
Instance must be sustained.

1.       Concededly, at the
start of the pre-trial on November 5, Custombuilt’s
attorney was present.  But he
unceremoniously left the courtroom. 
Counsel averred in his petition for relief that he had to leave
posthaste because “he was summoned home all too suddenly” as
“(h)is pregnant wife had been having labor pains” which “were
cause for alarm” because “his wife was due for confinement x x x and she finally delivered on
November 10, 1964.”

Counsel did not have the foresight required of him.  Pursuant to Section 1, Rule 20 of the Rules
of Court, both client and counsel must appear at the pre-trial.  This is mandatory.  Failure of the client to appear is ground for
dismissal.^[5]
If one representing his client – a corporation – was present, counsel could
have easily left word for the former to tell the judge that he was suddenly
summoned to his home.  If the client were
not present, then the case just the same would have been dismissed.  But, the point is that allegedly someone
summoned said attorney to go back home. 
If this were true, then it would have been quite easy for the lawyer to
have asked that man to stay around and tell the judge or the clerk or the
branch deputy clerk of court of his, predicament.  Or, he himself could have as easily told the
judge, or either clerk, or the adverse counsel, the court steno­grapher, the
interpreter, the bailiff, or anyone for that matter, of his inability to wait
for the pre-trial.  He failed to do any
one of these.

In his petition for relief, Custombuilt’s
lawyer also made the statement that his wife did not give birth until five days
later, that is, on November 10.  It is
unreasonable to assume that during the whole period of time – from November 5
to November 10 – his mind was in blank, such that it was impossible for him to
have taken steps to tell the court personally or otherwise that his absence
during the pre-trial was excusable. 
Again, he did not.  He received
copy of the decision on November 10.  He
did not file the petition for relief until November 14.

The foregoing are not isolated instances.  The fact is that even when the trial was held
in the City Court of Manila, neither was there appearance for appellant
Custom-built – “despite due notice”.

All of these facts point to one conclusion:  lack of interest on the part of appellant to
defend itself against the complaint. 
Rather, the pattern of conduct discloses a desire to delay disposal of
the present case.  Failure to prosecute
is a ground for dismissal of the appeal and revival of the judgment of the city
court under Section 9, Rule 40 of the Rules of Court.

We have not overlooked Section 2, Rule 20 of the Rules of Court,
which says that “a party who failed to appear at the pre-trial conference
may be non-suited or considered as in default.” So that, as held in the
two cases heretofore cited, namely, American Insurance Company
vs. Republic, supra, and Home Insurance Company
vs. United States Lines Co., supra, a
complaint may be dismissed failure of the party plaintiff to appear at the
pre-trial.  But, this remedy is by no
means exclusive.  It goes hand in hand
with the right of the court of first instance – upon a showing of failure to
prosecute – to dismiss a defendant’s appeal from the judgment of an
inferior court pursuant to Section 9, Rule 40.

2.       In Custombuilt’s notice of appeal,^[6]
we note that defendant gave notice that he would “appeal the judgment on
the merits, upon the ground that it is not supported by the evidence and is
contrary to law.” Indeed, his second assignment of error challenges the
correctness of the judgment of the city court on the merits.

One important roadblock stands astride any discussion of the
judgment of the City Court of Manila. 
Pursuant to Section 9, Rule 40, supra, that judgment “shall
be deemed revived and shall forthwith be remanded to the justice of the peace
court or municipal court for execution.” Implicit in this rule is that
that judgment of the City Court of Manila may no longer be reopened.  For, the appeal to the Court of First
Instance of Manila has already been dismissed by the latter court.  All that is left is to execute the city
court’s judgment.

FOR THE REASONS GIVEN, the trial court’s order of November 5, 1964 is hereby affirmed.

Costs against appellant Custombuilt
Manufacturing Corporation.

SO ORDERED.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando, and
Capistrano, JJ.,
concur.

^[1]
This petition seeks to set aside the trial court’s order dismissing defendant’s
appeal.

^[2] Civil Case 90779.

^[3]
The execution was by virtue of a judgment in Civil Case 30325, Court of First
Instance of Manila, entitled “Custombuilt
Manufacturing Corporation, Plaintiff, versus Adriano Go,
Defendant”.

^[4] Civil Case 49935.

^[5] American Insurance Company vs.
Republic, 1967D Phild. 63, 64; Home Insurance
Company vs. United States Lines Co., 1967D Phild.
401, 403-404.

^[6] Record on Appeal, p. 33.