RADIOWEALTH TRADING CORPORATION, PLAINTIFF-APPELLEE, VS. AIDA L. ABASTILLAS, DOING BUSINESS UNDER THE NAME AND STYLE OF AA GENERAL MERCHAN­DIZING, DEFENDANT-APPELLANT.

This is an
appeal from the orders of the Court of First instance of Manila, in its Civil Case No.
62587, issued subsequent to, and in compliance with, the judgment by compromise
rendered upon the pre -trial the cases.

The
following proceedings were had before the court a quo:

On 18
October 1965, plaintiff-appellee Radiowealth
Trading Corporation filed amended complaint against the defendant-appellant
Aida L. Abastillas, doing business under the name and
style of AA General Merchandizing to recover, among other demands, the sum of
P37,236.00, representing the value of goods delivered by the former to, and
received by, the latter, pursuant to their dealership contract.

After
the issues were joined, the parties were called for a pre-trial conference
where the following entered their appearances: 
“(1) Atty. Isidoro Real, Jr., for the
plaintiff, and Mr. Eugenic Elevado, chief accountant
of plaintiff corporation, who presented to the court a power of attorney
authorizing him to represent the plaintiff in the pretrial, and who promised to
present within two (2) days the resolution of the board of directors of
plaintiff corporation authority its vice-president and general manager Mr.
Ramon P. Binamira, to execute said power of attorney
(2) the defendant and her counsel Atty. Pospicio M. Velarde” (Record on Appeal, page 42.)

The
court a quo succeeded later in bringing about a settlement of the
case by the parties, who agreed to the following:

“A
– – – Terms of Settlement

“1.    That the defendant confesses judgment to the
extent of P35,795.00;

“2.    With aspect to the difference between
plaintiff’s claim of P37,236.00 and the confession of judgment in the sum of
P35,795 or P1,441.00, the parties agreed to resolve the difference as follows:

“a. That plaintiff will submit to defendant its
supporting statement;

“b. Defendant will go over the same and either
accept or except to the items, if any;

“c. The parties will submit to the Court their
respective claims and abide by the Court’s determination thereof;

“3.    That plaintiff agrees to give defendant a
period of six (6) months from today, or up to 16 August 1966, within which
defendant can mortgaged or sell the property mortgaged under Exhibit 3,
on condition that after such mortgage or sale of the property, defendant will
pay the plaintiff the amount due the plaintiff under 7 (2) above;

“4.    That defendant agrees to pay 12% interest on
the amount determined h the Court, said interest to accrue from 15 September
1965 until the obligation is fully paid:

“5.    That both parties agree to forego and drop
other claims against each other;

“6.    That the parties will beer their respective
expenses end costs incident to these proceeding;

“7.    That the plaintiff undertake to release the
mortgage should the defendant present a sufficient guarantee from a banking
institu­tion, acceptable to plaintiff, that the account will be paid within 6
months;

“8.    That should defendant fail to pay her
account as determined herein within six (6) months from today, or 16 August 1965, plaintiff shall be
entitled to a writ of execution to the extent of the entire obligation of
defendant plus interests, to satisfy this judgment.

“9.    That the parties and their respective
counsel pray the Court that the foregoing terms and conditions be approved and
that judgment be rendered in accordance therewith; and

“10.  That in witness thereof, the parties and/or
their representatives end their respective counsel
signed the stenographic notes of these proceedings.” (Record On Appeal, pages 48-50).

The
court approved the above terms and conditions, incorporated them, and stated
the following in its decision dated 16 February
1966:

10.  SCOPE & EFFECTIVITY OF THIS DECISION – – –
This pretrial having resulted in an amicable settlement between the parties
under such terms and condition arrived, as above-indicated, this Decision is
final and conclusive between the parties, subject – – – (1) to the submission
by the plaintiff’s representative of the resolution of its board of directors
per Par. 1-a, 1) above; and (2) the determination o the dispute re conflicting
claims on the difference of P1,441.00 by the Court.

“The plaintiff is hereby ordered to submit the resolution of
the board of directors as directed above; and, the plaintiff is hereby given 2 days
from notice of this Decision within which to sub­mit to the defendant its
supporting statement on the defendant’s account; the defendant is hereby given
2 days from receipt end manifest her acceptance or exception thereto, or items
thereof, and to submit the same to the Court for approval or determination.

“WHEREFORE, the Court, having approved compromise agreement as
indicated in Paragraph 7 above, hereby renders judgment in accordance there
with, and enjoins the parties to comply with the terms and conditions thereof.

“SO ORDERED.”

Plaintiff-appellee corporation, in compliance with the decision,
submitted, on 24 February 1966, a detailed statement to support its claim for
P37,236.00 and, on 1 March 1966, the excepts from its amended by-laws and from
the minutes of the meeting or its  board
electing Mr. Ramon Binamira as vice-president and
confirming his designation as general manager, instead of the board resolution
authorizing Mr. Binamira to execute the power of
attorney in favor of Mr. Eugenio Elevado,
as the latter had promised to present to the court.

On 3 March 1966, defendant-appellant Aida Abastillas
received a copy of the decision (Record, page 2), and on 10 March 1966 filed a motion to declare plaintiff corporation
non-suited for its failure to appear in the pre-trial because the power of
attorney of Mr. Elevado to represent the corporation
was invalid.  This motion was denied on 12 March 1966.

On 12 May 1966, defendant-appellant filed a petition set aside judgment, which was
denied in an order dated 14 May 1966.  In the same order, defendant was ordered
“either to except – – – submitting the basis for the exception; or to
accept plaintiff’s claim that she is indebted to plaintiff in the sum of P37,236.00 . . . . . .” Defendant-appellant moved to
reconsider, but her motion was denied on 4 June 1966.

Hence
defendant-appellant interposed the present appeal from the order of 14 May 1965 denying her petition to set aside judgment, including the portion of
the order ordering her to except or accept plaintiff claim in the sum of P37,236.00, and from the order of 4
June 1966 denying reconsideration.

Appellant’s
theory is that the by-laws of plaintiff corporation did not empower its
vice-president and general manager to execute the power of attorney in favor of
Mr. Elevado to represent said corporation in the
pre-trial; that since Mr. Elevado lacked the
authority to represent the corporation, the corporation was, therefore, absent
during the pre-trial, and for such absence, it should have been non-suited, under
Section 2, Rule 20 of the Rules of Court, which provides:

‘’SEC. 2. 
Failure to appear at pre-trial conference.  — A party who fails to appear at a pre-trial
conference may be non-suited or considered as in default.”

Appellant adds:  that the submission
by plaintiff of the excerpts from the bylaws of the corporation and from the
minutes of the board meeting electing Mr. Binamira as
vice president and confirming his designation as general manager is not a
sufficient compliance with the condition provided for in the compromise
judgment, which called for the board solution authorizing Mr. Binamira to execute the power of attorney, not the said
excerpts; and that although the general manager has power to execute contracts
binding upon the corporation, such power refers only to the business of trading
merchandise and not to the “business of litigation at law” (per Reply Brief,
page 12).

It does
not appear from the “Terms of Settlement” that the matter of
corporate representation in the pre-trial was a consideration – – – – much less
the controlling consideration – – – – that impelled the parties to enter into
the said settlement.  Appellant,
therefore, cannot claim that she would not have entered into the agreement had
she known that accountant Elevado had no authority to
represent the company.  Her ground of
fraud in her petition to set aside judgment is no fraud at all; she was not
deceived into giving her consent to the agreement; the power of attorney was
presented at the pre-trial conference (Record, page 107) and not kept off from
her notice, or suppressed.  She has not
even alleged any prejudice, outside of the terms of the settlement, that
accrued to her by reason of the supposed lack of authority of Mr. Elevado on the contrary, her bringing up the matter of
corporate representation after she had consented to the agreement, has delayed,
by a technicality, the satisfaction of them judgment.  She could have withheld her consent had she
been serous in her belief that the power of attorney was invalid.

Appellant’s
admission that the general manager has authority to execute contracts of
trading binding upon the company (Reply Brief, page 12) implies, incidentally,
if not necessarily, his power to seek judicial redress for non-fulfillment or
breach of such contracts by parties with whom said general manager has
contracted in behalf of the company, such as the present appellant.  Assuming, for the sake of argument, that the
power can not be delegated, the plaintiff corporation’s act in sub­mitting the
detailed statement of account called for in the compromise and decision
constitutes an adoption and ratification of the compromise and a validation of
accountant Elevado’s act in entering the same,
thereby curing whatever defect in authority existed heretofore.

The trial
judge has the discretion to declare a party non-suited (American Insurance Co.
vs. Republic, G.R. No. L-25478, 23 October 1967, 21; SCRA
464; Home Insurance Co. v. U. S. Lines Co., G.R. No. L-25593, 15 November 1967, 21 SCRA 863), and, in this case, in view of the
circumstances, he did not abuse such discretion.

But, if
for one reason alone, the appellant’s petition to set aside judgment was
properly denied:  the petition was filed
late.  She received a copy of the
decision on 3 March 1966 and filed her petition on 12 May 1966.  Section 3, Rule 38, of the
Rules of Court provides that such petition should be filed “within sixty
(60) days after the petitioner learns of the judgment, order, or other
proceeding to be set aside, and not more than six (6) months after such judgment
or order was entered, or such proceeding was taken ………” Despite her
having filed her petition within six (6) months, such time of filing did not
satisfy the period of limitation because the filing was not made within sixty
(60) days after she learned of the judgment. 
The second period mentioned in the aforequoted
rule is a limitation to the first (2 Moran 222, and cases cited therein).

FOR
THE FOREGOING REASONS, appealed orders are hereby affirmed. 
Treble costs in instance personally against counsel.

Concepcion, C.J., Dizon,
Makalintal, Zaldivar,
Fernando, Teehankee, Barredo,
and Villamor, JJ., concur.

Castro, J., is on leave.