RAUL H. TANPINCO, PLAINTIFF AND APPELLEE, VS. ANTONIO T. LOZADA AND CENTURY INSURANCE CO., INC., DEFENDANTS. ANTONIO LOZADA, DEFENDANT AND APPELLANT.

The above-entitled case was instituted in the Court of First Instance of
Negros Occidental to recover from defendants the sum of P5,000 for the failure
of defendant Antonio Lozada to carry out the obligation contracted by him with
the plaintiff of clearing and ridding of all occupants, whether tenants or
squatters, within the period of 6 months from April 18, 1956, a parcel of land
known as Lot No. 213 of the cadastral survey of Bacolod, Negros Occidental. The
basis of the suit is an agreement entered into between plaintiff and defendant
Antonio Lozada whereby for the consideration of P5,000 Lozada undertook the
clearing of the above parcel of land of squatters and occupants within the
period of 6 months. The defendant Century Insurance Company, Incorporated,
executed a bond in favor of plaintiff to guarantee the performance by Lozada of the
faithful compliance with the terms of the agreement. It so happened, however,
according to the answer of the defendants, that although defendant Lozada was
able to secure a judgment of ejectment in the mimicipal court of Bacolod City
against the occupants or squatters and a writ for its execution, and a further
order for the demolition of the houses of the defendants occupants, the
demolition was not carried out because of the illness of defendant Lozada; and
notwithstanding letters from him to plaintiff asking the latter to extend the
period for complying with the obligation of his agreement, he received no reply
to his letter up to the filing of the plaintiff’s complaint. Lozada further
claims that the agreement was against public morals, law and equity. For its
part the insurance company admitted the allegations of the complaint but prayed
in a crossclaim that judgment be rendered against Lozada for the sum of P5,000
which the Century Insurance had paid under the performance bond.

It does not appear from the record on appeal what proceedings took place
subsequent to the filing of the answers of the defendants, although it is
presumed that judgment must have been entered against them. For on June 27,
1958, defendant Lozada filed an urgent motion ex-parte alleging that on June 13,
1958 he addressed a letter to the clerk of court “asking for the status of the
said case and for a copy of the decision if any” but that he has not received
any reply thereto; that he has not authorized anybody in Bacolod City to receive
any pleading, etc. in connection with the above case, and he therefore prayed
that copy of the decision be sent him if any has been rendered (Record on
Appeal, p. 24). On July 12, 1958, the court denied Lozada’s motion on the ground
that according to the records of the case, Atty. A. L. Balines had not only
appeared in his behalf during the hearing of the case, but that he (Atty.
Balines) had also filed an urgent motion, dated February 19, 1958, asking “that
defendant Lozada, by his undersigned counsel, be granted an extension of one
week to file his memorandum,” which motion the court granted in its order of
February 28, 1958, and that the “record likewise discloses that the same
Attorney Balines received a copy of the decision on March 4, 1958.”

On July 30, 1958, Lozada filed a “Petition for Relief Under Section 2 of Rule
38 of the Rules of Court,” in which after quoting a letter addressed by him to
the clerk of court advising said clerk that Atty. Balines has not informed him
about the decision rendered in the case in spite of letters and because of the
fact that the decision is already final “in accordance with the finding of this
court to the great astonishment and surprise of the defendant,” he was praying
the court that because of the existence of a clear “excusable negligence” on his
part, the court order the clerk to furnish him with a copy of the decision and
to set aside the said decision and declare the alias writ of execution null and
void, to send all notices and orders of the case to his Manila address and grant
any other remedy which may be deemed just and equitable. This motion is sworn
to, was set for hearing on Saturday, October 23, 1958 and has attached thereto
an affidavit enumerating the facts already mentioned above: (1) his letter of
June 13, 1958 to the clerk of the Court of First Instance informing him that he
has not received a copy of the decision; (2) that on June 27, 1958; he filed
an ex-parte motion alleging that he had not received any decision and prayed
the court to send him copy of the decision, if any; (3) that on July 7, 1956, he
wrote the clerk of court that in spite of the fact that he had been previously
furnished copy of the orders and decision, he was not so advised by his
attorney; (4) that he learned about the decision for the first time when he
received the court order denying his urgent ex-parte motion of June 27, 1958; and
(5) that there is a clear case of excusable negligence considering that he has a
good defense as shown in his answer with counterclaim as well as in his
deposition.

Defendant opposed the petition for relief on the ground that under section 2
of Rule 27 of the Rules of Court, when a party appears by an attorney, service
upon the party shall be made upon his attorney, unless service upon the party
himself is ordered by the court; that Atty. Balines is a relative of
defendant-movant Lozada; that Atty. Balines is presumed to be innocent of any
wrong, misconduct or misbehavior. Following the presentation of the above
opposition, the court denied the motion in an order dated September 2, 1953 and
after the denial of a motion for reconsideration, Lozada appealed from said
order of denial to this Court.

The enumeration of the above facts and circumstances clearly show that the
appeal is absolutely without merit. Under section 2 of Rule 27-of the Rules of
Court the attorney of a party is the one to be furnished with copy of any order
or decision of the court unless the court orders otherwise. The order of the
court denying the petition for relief is fully justified. Lozada alleges that
there was excusable negligence on his part; we hold that this is not so. As to
the alleged existence of a meritorious defense his motion for relief does not
show the existence thereof because the contract itself, which is attached to the
complaint, expressly provides:

“That, whereas, the PARTY OF THE SECOND PART is fully aware of the nature and
character of the rights and interests which the occupants of said parcel of land
hold therein, as he has made and conducted a thorough investigation thereof,
just as he is fully aware of the risky nature of the work or undertaking
contracted to be performed by him in accordance with this agreement, and the
said sum of FIVE THOUSAND PESOS (P5,000,00) has been fixed by him, being by him
deemed fully and amply sufficient to compensate him for all his services,
trouble and risk and to cover all his expenses in the performance of the work or
undertaking contracted by him m accordance with this agreement;

 * * * * * * *

“1. That the work or undertaking to be performed by the party of THE SECOND
PART for the PARTY OF THE FIRST PART shall consist in having the said parcel of
land completely cleared and rid of all occupants, whether tenants and/or
squatters, within a period of six (6) months from the date of the execution of
this instrument, which work or undertaking the PARTY OF THE SECOND PART shall
perform, completely at his own risk and expense, without any right to be
compensated for his services or to be reimbursed for his expenses in case of
failure by him to complete the performance of such work or undertaking within
the time agreed upon, it being understood, for the purposes of this agreement,
that any part performance of such work or undertaking shall be deemed to be a
complete lack of performance thereof and shall not impose upon the PARTY OF THE
FIRST PART any obligation or liability whatsoever to pay anything
therefor;”

The defendant, a lawyer, made the express obligation above set forth
presumably cognizant of its effects. But even if the partial compliance of his
obligation might have justified reduction in the amount of his liability, his
neglect prevents him from securing relief against the judgment.

Wherefore, the order denying the motion for relief should be, as it is
hereby, affirmed, with costs against appellant.

Bengzon, C. J., Padilla, Bautista Angelo, Concepcion, Reyes, J. B. L.,
Barrera,, Parades, Dizon, and De Leon, JJ., concur.