G.R. No. 14109. January 30, 1960
NATIONAL LUMBER & HARDWARE CO., PLAINTIFF AND APPELLEE, VS. PEDRO J. VELASCO, DEFENDANT AND APPELLANT.
GUTIERREZ DAVID, J.:
On August 21, 1952, a complaint was filed with the Municipal Court
of Manila for the collection of the sum of P481.00, plus interest,
allegedly representing the unpaid balance of the cost of lumber
purchased by the defendant from the plaintiff. On January 17, 1953,
after trial, said court rendered judgment in favor of plaintiff.
Defendant appealed to the Court of First Instance of Manila and
after the issues were therein joined, the first hearing was set for
March 23, 1954. On the 16th of the same month, however, counsel for
defendant filed an “Urgent Ex-Parte Petition for Postponement of
Hearing” on the ground that on the date set for hearing, the counsel
would be busy with another case in Baguio City and the defendant would
similarly be busy.
The hearing was rescheduled for October 26, 1954, upon plaintiff’s
motion, but on account of defendants “Very Urgent Ex-parte Petition for
Change of Date of Hearing.” due, allegedly, to pressure of work, the
hearing was again reset for March 5, 1956. When that day came, however,
another “Ex-Parte Very Urgent Emergency Petition” was filed by
defendant. The hearing was once again postponed to June 21, 1956, at
2:00 p.m., in accordance with the defendant’s desire expressed in said
motion that postponement should be until the later part of June, 1956.
In the morning of June 21, 1956 at 10:30, defendant’s counsel filed
another “Very Urgent Ex-Parte Petition for Postponement of Hearing”
because, according to him, he suddenly felt dizzy upon his arrival from
Cavite at that hour. And so the hearing was once more ordered postponed
to August 9, 1956 at 2:00 p.m. The order of postponement was issued in
open court in the presence of defendant.
On August 7, 1956, counsel for defendant filed his fifth “Ex-Parte
Very Urgent Petition” for continuance for the reason that he had not
received any formal notice of the hearing set for August 9 and that he
had another hearing in the Court of First Instance of Rizal.
On August 9, 1956, when the case was called for trial, neither the
defendant nor his counsel of record appeared. Instead, a certain Atty.
Moises O. Bontoc appeared with a medical certificate stating that the
defendant was suffering from acute lumbago and reiterated the latter’s
request for postponement. This time the motion for continuance was
denied and the plaintiff was allowed to present his evidence, the trial
court being of the opinion that for the reception of plaintiff’s
evidence the presence of the defendant was not necessary. Atty. Bontoc
refusing to represent the defendant, left the court before the
plaintiff started presenting its evidence. On the same day, the lower
court rendered judgment ordering the defendant to pay to plaintiff the
sum of P481.00 with interest at 12% per annum from May 31, 1952, plus
attorney’s fees in the amount of P120.00 and costs of suit.
After receipt of a copy of the decision, the defendant filed an
urgent, motion praying the court to set aside the decision and to set
the hearing anew, but this was denied. Whereupon, defendant appealed to
the Court of Appeals but that court certified the case to us on the
ground that the questions raised are purely legal.
We do not think there has been any abuse of discretion on the part
of the lower court in having proceeded with the trial on August 9, 1956
even without a copy of the notice of that trial set on that date having
been sent to counsel for defendant-appellant. It is noteworthy that the
further postponement of the trial from June 21, 1956 to August 9, 1956
was at defendant-appellant’s request. It is, therefore, difficult to
see how defendant-appellant’s counsel could not have known, through
eagerness, the result of his motion. Admittedly, the order resetting
the case for trial on August 9, 1956 was in open court and in the
presence of defendant-appellant himself. While it is true that a notice
to a party is not sufficient notice in law, we think that objection to
that defect may be waived. In this case, counsel for
defendant-appellant’s own act of filing his last “Ex-Parte Very Urgent
Petition” for continuance of the trial set for August 9, shows that he
had been informed of the order of the trial court setting the case for
trial on that date. And we take this as a waiver on the part of said
counsel to the formal notice required by the Rules.
Defendant-appellant has no valid reason to complain of the court’s
failure to resolve his last urgent petition for he filed it only two
days before the 9th of August, 1956, the date set for the hearing of
the case. Even if the court would have resolved the motion at the very
moment it was filed, the resolution could not have even reached
appellant’s counsel before the time and date scheduled for the trial.
It will be remembered that the hearing scheduled for August 9, 1956 was
set way back on June 21, 1956, and, as stated in appellee’s brief,
following the usual course of human events, appellant must have
informed his counsel, and one and a half months is long enough for
counsel to have filed a motion for postponement in order to enable the
court to resolve the same and to notify him of such resolution in due
time.
If defendant-appellant was really ill on the date set for hearing,
at least his counsel should have appeared to find out what action was
taken on his motion for further postponement and be present at the
presentation of the evidence for the plaintiff, cross-examine its
witnesses and ask for an opportunity to present his own evidence at
another time. While defendant-appellant’s request for postponement may
not be entirely groundless, neither he nor his counsel had reason to
assume that the trial court would grant it (Sarreal vs. Tan, 92 Phil., 689, 49 Off. Gaz., 499), especially if their motion was filed in less than three days’ notice (Bautista vs.
Municipal Council of Mandaluyong, et al., 98 Phil., 409, 52 Off. Gaz.,
p. 759). And it has been held time and again that motions for
continuance are addressed to the sound discretion of the trial court
and this discretion should not be interfered with unless it is shown to
have been abused (See Fabillo vs. Tiongko and Egay, 43 Phil., 317; Linis vs. Rovira, 61 Phil., 138; Dimayuga vs. Dimayuga, 96 Phil., 859, 51 Off. Gaz., p. 2397; Salvador Cruz vs. Malabayasbas, 105 Phil., 708; Rufino Adan et al. vs. Nicasia Pantalla, 105 Phil., 921).
Remarkably, the present case had been ready for trial as far back as
May, 1953, when the last pleading was filed. From that date up to the
hearing on August 9, 1956, trial had been postponed four times, all at
the instance of the defendant-appellant. It cannot, therefore, be said
that appellant has been deprived of the opportunity to defend himself.
In view of the foregoing, the order appealed from is affirmed, with costs against the appellant.
Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, and Barrera, JJ., concur.