HORACIO GUANZON, PETITIONER, VS. FRANCISCO ARAGON, HON. GUILLERMO ROMEO, AND THE PROVINCIAL SHERIFF OF RIZAL, RESPONDENTS.

On September 21, 1957, Francisco Aragon brought an action against
Horacio Guanzon before the Justice of the Peace Court of Paranaque,
Rizal praying that the latter be ejected from the land mentioned in the
complaint. In due time, Guanzon filed his answer to the complaint.
Meantime, one Pablo Lozada moved to intervene claiming to be entitled
to the ownership and possession of the property and when the motion was
denied, Lozada instituted an action for mandamus before the Court of
First Instance of Rizal. This action was dismissed, the court
sustaining the order of the justice of the peace court denying the
intervention.

Despite the mandamus case, the ejectment case was continued wherein
Aragon completed the presentation of his evidence. Then the trial was
suspended on Guanzon’s petition, its continuation having been set for
March 4, 1958 for the reception of Guanzon’s evidence. Of this hearing
Guanzon’s counsel, Atty. Cesar Leuterio, was duly notified, but despite
said notification neither Guanzon nor his counsel appeared as a
consequence of which the justice of the Peace Court of Parañaque
considered the ease submitted for decision. Accordingly, on April 30,
1958, the court rendered decision ordering Guanzon to vacate the land
in question and to restore its possession to Aragon, declaring Guanzon
to be a builder in bad faith, and ordering furthermore Guanzon to pay
the sum of P100.00 a month as rental, plus the sum of P200.00 as
attorney’s fees, with costs.

On June 11, 1958, Guanzon’s counsel received a copy of the decision,
and when the same became final and executory, Aragon asked for a writ
of execution. Acceding to the request, the justice of the peace court
issued the writ, and the provincial sheriff set a date for the sale at
public auction of the building standing on the land.

On August 6, 1958, a few days before the scheduled sale, Guanzon
filed with the Court of First Instance of Rizal a petition for relief
from the judgment of the justice of the peace court with a prayer for
preliminary injunction. This petition was given due course, the court
requiring Aragon to file his answer, but upon a motion for
reconsideration wherein Aragon moved for the dismissal of the petition,
the lower court, after proper hearing, resolved to deny the petition
for relief on the ground that the reasons alleged therein do not
constitute excusable negligence as to warrant the reopening of the case
before the Justice of the Peace Court of Parañaque. Hence the present
appeal.

In the petition for relief filed by appellant for the reopening of
the case before the Justice of the Peace Court of Parañaque, he set
forth the following reasons as justification: that he did not appear in
the continuation of the hearing of the case set for March 4, 1958
because he was not notified thereof either by the court or by his
counsel due to the circumstances stated in the latter’s affidavit; that
he could not appeal from the decision rendered by the justice of the
peace court because he came to know thereof only on July 30, 1958 when
he received a notice from the provincial sheriff that his property will
be sold at public auction on August 14, 1958 to satisfy the judgment ;
that because of the above circumstances he was not able to present his
evidence and so he was deprived of his day in court; that his petition
was filed within 60 days after he learned of the decision and within 6
months after the same was entered; and that he has a good and
substantial defense, to wit: that he constructed a semi-complete
building on the lots in question on the strength of a contract of
partnership he entered into with one Pablo Lozada who contributed
thereto the lots aforesaid as his capital and who claimed to be
entitled thereto by virtue of an agreement to sell executed in his
favor by the Director of Lands, appellant believing in good faith that
Lozada was the owner thereof, and that the question of ownership of the
land was still the subject of litigation between Aragon and Lozada in
the Office of the President of the Philippines.

On the other hand, the failure of appellant’s counsel to notify him
of the date of the continuation of the hearing as well as to furnish
him with a copy of the decision appears explained by counsel in an
affidavit attached to the petition for relief, which explanation
appellant claims to be his justification for the reopening of the case.
The affidavit contains the following averments: that after the initial
hearing of this case before the justice of the Peace Court of
Parañaque, appellant took all the papers of the case from the affiant
and turned them over to Atty. Eliseo Tenza so that the latter may
prepare the necessary pleadings for the mandamus case appellant wants
filed before the Court of First Instance of Rizal; that because of the
employment of Atty. Tenza as additional counsel arid the fact that the
papers of the case were taken by appellant, affiant had the impression
that appellant has already terminated his services; that when on March
3, 1958 he received a notice from the court that the continuation of
the hearing would take place on March 4, 1958, he went to the clerk of
court to inquire whether Atty. Tenza was also notified of the hearing
and when he received an affirmative answer, he felt that his appearance
at the hearing was no longer necessary; that on June 11, 1958, he
received a copy of the decision of the justice of the peace court and
when he failed to contact appellant, he merely notified one Ponciano
Sevilla, a responsible employee of appellant, whom he instructed to
relay to appellant the information that the court had rendered an
adverse decision against him, and Sevilla assured him that he will
transmit the message to appellant.

Ponciano Sevilla, in turn, stated the following in his affidavit of
merit: that on June 13, 1958, he received a telephone call from Atty.
Cesar Leuterio instructing him to transmit a message to appellant to
the effect that the Justice of the Peace Court of Parañaque rendered an
adverse decision against him; that he wrote the instruction on a piece
of paper and placed it on his counter, but unfortunately the same was
lost; and that because when he received the telephone call he had many
customers and was busy attending to them, he was not able to relay the
message to appellant until July 30, 1958 when appellant made an inquiry
regarding said telephone call.

In considering the foregoing circumstances as not sufficient to
constitute excusable negligence within the spirit of Rule 38, the trial
court made the following observation:

“The petitioner mainly relies mi the ground of
excusable negligence for his petition for relief from the judgment. The
petition states that petitioner Guanzon did not appear m the
continuation of the trial of Civil Case. No. 46 on March 4, 1958
because he did not know of said hearing as he was not notified of it
either by the Clerk of the Justice of the Peace Court of Paranaque or
by his counsel Atty. Cesar Leuterio. The failure of petitioner Guanzon
to appear in the hearing of Civil Case No. 464 held on March 4, 1058
because he was not notified of said hearing by the Clerk of the Justice
of the Peace did not constitute excusable negligence because there is
no duty on the part of the court to notify him of the hearing as he was
represented by his counsel of record, Atty, Cesar Leuterio, to whom
notice of hearing, was sent.

There was neither excusable negligence when Guanzon failed to attend
the hearing in the Justice of the Peace Court because his lawyer Atty.
Cesar Leuterio did not notify him of said hearing. Notification of
hearing to Atty. Leuterio was sufficient (Sec. 2, Rule 27, Rules of
Court). If the presence of Guanzon was essential in the trial of March
4, 1058, then his counsel, Atty. Leuterio, would certainly have,
knowledge of this circumstance and he should have notified his relient
of said hearing. Atty. Leuterio attempted to explain that he did not
notify Guanzon of the date of hearing nor did he appear at said hearing
because he was of the honest belief that his services’ as the lawyer of
Guanzon had already been terminated by the latter. But a lawyer oC
ordinary prudence knows that the relief of the counsel of record in a
case could only be effected in the modes outlined in Section 24 of Rule
127 of the Rules of Court, and Atty. Leuterio had not been, retired as
counsel for Guanzon in any of the modes so specified in said Section
24. His assumption that he was already relieved as counsel for Guanzon
had therefore no legal basis so that his failure to appear at the
hearing was an omission which an ordinary prudent lawyer under the
circumstances would not have committed and hence his said failure
constituted gross negligence.” (Record on Appeal, pp. 75-77)

There is nothing in the foregoing observation from which we can
infer that the trial court acted erroneously or with abuse of
discretion. On the contrary, we find it to be in accordance with Jaw
and to be supported by the circumstances surrounding the failure to
appear of appellant as well as of his counsel in the continuation, of
the hearing of the case. Indeed, the claim of appellant’s counsel that
he failed to notify his client of the hearing because when appellant
took from him the papers of the case to institute the mandamus case in
the Court of First Instance of Rizal he got the impression that
appellant has already terminated their relation as attorney and client
is untenable, for it runs counter to the mode prescribed in Section 24
of Rule 127 which provides that an attorney may only retire from a case
either by the written consent of his client or by permission of the
court, after due notice and hearing, in which event the attorney should
see to it that, the name of the new attorney be recorded in the case.
Verily, failure to observe such procedure cannot be considered as
excusable negligence on the part of counsel, much less a basis for
relief within the meaning of Rule 38.

The claim of counsel that his failure to notify his client is due to
the information given him by the clerk of court that Atty. Eliseo Tenza
was also notified of the continuation of the hearing cannot also be
entertained for, aside from the reasons stated above, it appears that
Atty. Tenza was the attorney of record of intervenor Pablo Lozada. He
was only employed by appellant when the latter decided to institute
mandamus proceedings to secure the admission of Lozada’s petition for
intervention on the ejectment case.

It is true that one of the factors that may be considered in
determining the sufficiency of the circumstances that may justify the
grant of a petition for relief is that the petitioner has a good and
valid defense which, if considered, may have the effect of reversing or
altering the nature of the decision. This upon the theory that a
petition for relief is addressed to the sound discretion of the court.
But here the alleged good and substantial defense set up by appellant
is that he entered into a partnership contract with one Pablo Lozada
who claims to be the owner of the land on which he erected a
semi-complete building and that the ownership of said lot was still
pending determination in the Office of the President when appellant
filed his petition for relief, which claim is not correct, for the
record shows that when said petition was filed the administrative case
between Lozada and appellee has already been finally passed
upon by said office. Thus, from the record it appears that on April 5,
19S7 the Office of the President decided the case adversely to Lozada
by virtue of the appeal taken by Aragon from the decision of the
Secretary of Agriculture and Natural Resources, while the motion for
reconsideration filed by Lozada was denied by said office on April 11,
1958 (Annex A). On the other hand, the record shows that the petition
for relief from judgment was filed by appellant on August 6, 1958 and
the same was denied on August 20, 1958.

We find, therefore, no plausible reason for disturbing the action
taken by the trial court considering that the alleged special defense,
even if considered, could not have the effect of altering the nature of
the decision of said justice of the peace.

“But it should be noted that the granting or denial
of a motion for new trial is, as a general rule, discretionary with the
courts, whose judgment should not be disturbed unless there is clear
showing of abuse of discretion. In the instant case, we find that the
lower court did not abuse its discretion. While it is true that the
failure of the defendants to appear is due to inadvertence or mistake
on the part of an employee which ordinary prudence could not have
guarded against, we should not lose sight of the fact that the lower
court deemed it wise to deny the motion because it considered futile
and unsubstantial the defenses set up by the defendants which, even if
proven, could not have the effect of altering the nature of the
decision. In this respect we agree with the trial court.” (Miranda vs. Legaspi, et al., 92 Phil., 290; 48 Off. Gaz., No. 11, p. 4822.)

Wherefore, the order appealed from is affirmed, with costs against appellant.

Paras, C. J., Bengzon, Montemayor, Labrador, Concepcion, Endencia, and Gutierrez David, JJ., concur.
Reyes, J. B. L., J., concurs in the result.
Barrera, J., took no part.